Volume 54 — Federal Reporter

<p>In Equity. Bill in the circuit court of Wayne county, Mich., by the city of Detroit against the Detroit City Railway Company, the Detroit Citizens’ Street-Railway Company, Sidney D. Miller and William K. Muir, trustees, and the Washington Trust Company of the City of New York. The Washington Trust Company of the City of Yew York removed the cause to the federal circuit • court, and it is now on motion to remand.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern. District of Arkansas.</p> <p>Suit by Ralph L. Goodrich, clerk of the United States circuit and district court for the western division of the eastern district of Arkansas, against the United States for fees. The circuit court entered a judgment for plaintiff. 47 Fed. Rep. 267. Defendant appeals.</p>

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>Proceeding by the Colorado Eastern Railway Company against the Union. Pacific Railway Company for the condemnation of certain land. Judgment for plaintiff. 41 Fed. Rep. 293. Defendant brings error.</p>

<p>t. Federal Courts — Jurisdiction — Statb Statutes — Fraudulent Assignments.</p> <p>. . Tbo fact that the Michigan statute vests in the circuit court or that state the supervision of trusts created by assignments for the benefit of creditors; does not exclude the jurisdiction of the federal circuit court, in cases of diverse citizenship, to entertain a suit to set aside a mortgage made in contemplation of the assignment, arid covering all the assigned property, as in fraud of creditors. Ball v. Tompkins, 41 Fed. Rep. 48(5, applied.</p> <p>2, Same-Diverse Citizenship--Trusts.</p> <p>Where a trustee is a party to an action in a federal court, brought under the diverse citizenship clause of die federal constitution, the citizenship of the trustee, and not that of the beneficiaries under •the trust, determines the jurisdiction. Knapp v. Railroad Co., 20 Wall. 124, followed.</p> <p>8. Fraudulent Conveyances — Evidence.</p> <p>S. bogan business in Michigan in August, 1888, with goods of the value of $7,500. In the following spring he purchased more goods to the amount of §4,500. April 19, 1889, he executed a mortgage on the goods in favor of Ids brother and others, and on April 22, 1889, executed a general assignment At the time of the assignment there were only left goods to the value of §5,000. No other disposition of the rest of the goods was shown. Shortly before making the assignment S. bought other goods, and just as the obligations .therefor were falling due he borrowed a large sum from a bank, and then assigned. The brother had at various times and places made contradictory statements as to the amount S. owed him, and knew all about S.’s affairs, and bad gone to various persons with S. for the purpose of getting S. credit. ThM, that the mortgage was a fraud upon the general creditors of S., and was void as to tho brother.</p> <p>4 Same — Knowledge op Grantee — Innocent Beneficiary.</p> <p>Where a mortgage is given to one person for the purpose of securing debts due to himself and others, with intent on the part, of the mortgagor to defraud other creditors, it is valid as to an innocent beneficiary whoso debt is an honest one, although the mortgagee himself is a party to the fraud.</p> <p>5. Same — Knowledge op Agent.</p> <p>But such a mortgage is void as to one who, though innocent himself, procured the security through an agent who had knowledge of the fraud.</p>

In Equity. Bill by the Fidelity Trust & Safety Vault Company against the Mobile Street-Railway Company to foreclose a mortgage. Heard on motion to make absolute an order confirming the sale of the railway property. For opinion on motion to set aside service of a petition in the nature of a cross bill filed by certain bondholders, see 53 Fed. Sep. 850.

<p>1. Equity Pleadings—Informal Answer.</p> <p>A literal denial in the answer of a material allegation in the bill is not to be deemed an admission, although on exception it might have been held insufficient.</p> <p>2. Same—Effect of Answer.</p> <p>At a hearing on the pleadings, embracing bill, answer denying its material allegations, and replication reiterating the averments of the bill, the answer must be taken as true, and the bill will be dismissed.</p>

In Equity. Rill by the Union Pacific Railway Company against W. M. Harmon, F„ EL Harmon, and Guv D. Harmon to restrain defendants from preventing complainant from entering on certain land to mine coal thereon. The circuit court refused an injunction, and dismissed the bill. Complainant appeals.

<p>Appeal from the Circuit Court of the United States for the District of Kentucky.</p> <p>In Equity. Bill by T. E. Taylor and W. M. Parrish against R. P. Pepper for the cancellation of certain promissory notes. Taylor had bought a horse from defendant, Pepper, and given his notes in payment, secured by Parrish’s indorsement. Subsequently, and before any of the notes fell due, Taylor, being about to fail in business, sent the horse back to Pepper, with a request to deliver up the notes. Pepper received back the horse, but did not return the notes, having already negotiated them. Subsequently Parrish and Taylor’ were sued by the holder of the notes, and a compromise judgment was entered, and paid, for the amount of two of the notes, and all of them were thereupon surrendered. The circuit court entered a' de■cree in favor of the complainants for the amount which they had been compelled to pay upon the notes, and from this decree defendant appealed.</p> <p>Affirmed.</p> <p>The following opinion was delivered by BARR, District Judge, in the court below:</p> <p>1 If there was any ambiguity in Taylor’s letter of February 3, 1889, or doubt as to Ms purpose in sending the horse, ‘Judge Lindsay,’ to Mr. Pepper, that doubt was entirely removed bj Taylor's letter of February G, 1889. TMs letter, according to Mr. Popper’s evidence, was received by Mm at the time he accepted the delivery of the horse; and, according to Addison's statement, before he accepted the horse. It is, we tMnk, immaterial which statement is correct. In either event, Mr. Pepper, having full knowledge that a rescission of the purchase of the horse was intended when he accepted Ms delivery, is bound, and became under a legal obligation, to return the notes of Taylor and Parrish, which had been given for the horse.</p> <p>“It appears from the evidence that one of these notes was held by the Farmers’ Bank and the other three by the Deposit Bank, at Frankfort, and Parrish was sued on the two first maturing, and judgment rendered against him. This judgment was rendered in the state of Virginia, and a compromise entered into between the banks and Parrish, by which he paid $1,325, and the other two notes were surrendered to Mm. In view of this compromise, made, presumably, with the consent of Mr. Peppor, he is only liable to indemnify Parrish to the extent of the money thus paid, i. e. $500 and $825, with interest from the time of payment; that is, §500, with interest from the 2d of December, 1889, and §825, with interest from the 1st day of March, 3.890. There is no evidence of' the amount of the cost paid by Parrish in the suit in Virginia, and therefore a decree will not go for this cost.</p> <p>“The suggestion that Parrish subsequently sold the two notes surrendered to him, and may thus have fully indemnified himself for the money paid the hanks, is not to he considered. There is not an intimation anywhere in this record that Mr. Pepper was bound on those notes, and all the presumptions are the other way. It would have been absurd for the Deposit Bank to surrender two notes of Taylor, Parrish, and Pepper, — -one for §700 and one for #725, — in consideration of the payment of the other, for $075, of the same parties, by Parrish. Whatever may be the rights of Taylor, as against Parrish, because of the sale of these notes upon which he remained bound, is not before this court. That matter must be settled elsewhere. Mr. Pepper is entitled to the proceeds of the sale of the horse, ‘Judge Lindsay,’ and Parrish is entitled to a decree against Pepper for §500, with interest from December 2, 1889, and S825, with interest from March 1, 1890; and complainants are entitled to their costs In this suit. Let a decree go accordingly.”</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Missouri.</p>

<p>In Equity. Bill by Blindell Bros, against C. Hagan and others to enjoin interference with their business as shipowners. On application for an injunction pendente lite.</p>

- In Equity. Creditors’ bill, filed by Curtain & Comer, suing for themselves and others, against Williamson Talley, trustee, and Ernest H. Challdey. Decree for complainants. 46 Fed. Rep. 580. Defendants appeal.

<p>1. Corporations — Contracts—Insolvency—Liabilities—Trust Fund.</p> <p>A railroad company, owning an extensive telegraph system, caused the incorporation of a telegraph company by its officials, furnished its entire capital stock, and in ike name of such telegraph company contracted with complainant. Por breach of such contract, complainant recovered judgment against the telegraph company. Tho railroad company sold the entire telegraph plant, received ail ihe consideration, and loft tho telegraph company insolvent, and without assets of any hind. Held, that the money realized by die railroad company from sue* sale was in its hands a trust fund properly applicable to the payment of such judgment, and that payment ihei'eof would be enforced by a court of equity. 51 Fed. Itep. 49, affirmed.</p> <p>2. Same — Creditor's Bim> — MuiiTifakiousnesh.</p> <p>A creditor’s bill seeking to compel payment by the railroad company of tiie judgment against the telegraph company, to which bill both companies are made parties, and which sets out tee judgment, execution, and rot urn thereof unsatisfied, and the insolvency of the telegraph company, by reason of the sale <o£ its plant by the railroad company, is not multifarious.</p> <p>8. Same — Waivkb.</p> <p>The fact teat complainant elected to sue the agent, the telegraph company, and take judgment against it, did not preclude it from maintaining the suit against the railroad company to compel payment of such judgment.</p> <p>4. Sa me — Receivers—Appointment.</p> <p>There being no outstanding debts of tee telegraph company, except that of complainant, and possibly a claim for advances on the part of tho railroad company, the appointment of a receiver for the telegraph company was unnecessary.</p>

In Equity. Bill by the President and Trustees of Bowdoin College and others against James P. Merritt, Frederick A. Merritt, and others to remove a cloud on the title to certain property in which the complainants are interested as beneficiaries. Heard on demurrer. Statement by HAWLEY, District Judge.

In Equity. Bill by Walter Hinchman against George O. Kelley and Andrew C. Smith, executors and trustees under the last will and testament of Edward - S. Smith, deceased, and the North Olympia Land Company, to establish a trust in land. The bill was dismissed on demurrer. 49 Fed. Rep. 492. Complainant appeals.

In Equity. Bill by the Northern Pacific Railroad Company against F. E. Wright, treasurer of Fergus county, Mont., to enjoin the collection of taxes. A demurrer to the bill was sustained, (51 Fed. Eep. 68,) and a decree entered dismissing the same. Complainants appeal.

In Equity. Bill by James O. Kelly against Richard M. Sparks and Mary Sparks, his wife, to subject real estate claimed as a homestead to the payment of a judgment.

<p>In Equity. Bill by the Citizens’ Bank of Louisiana against the board of assessors for the parish of Orleans and others to enjoin the collection of taxes. Heard on application for an injunction pendente lite.</p>

<p>Corporations — Dissolution—Notice — Eights of Creditors — Attachments.</p> <p>A provision in the charter of a corporation, requiring the advertisement of 10 days’ notice of a stockholders’ meeting for the purpose of altering- or amending the charter, is so far for the benefit of creditors that a resolution to dissolve the corporation, passed at a meeting called without such notice, is ineffectual to prevent a subsequent attachment of the corporation’s property by existing creditors.</p>

<p>In Equity. Bill by tlie Cleveland City Forge Iron Company, the Prentiss Tool & Supply Company, and the Niles Tool Works, attaching creditors, against the Taylor .Bros. Iron-Works Company, Limited, to enjoin the dissolution of defendant. Injunction denied. Motions made in the attachment suits to dissolve the attachments were heretofore denied. See 54 Fed. Kep. 82, where additional facts a,re stated.</p>

<p>1. Deceit-Fame Reeresentattons in Saee op Lands — When Action Maintainable.</p> <p>In an «action to recover damages for a false representation as to the ownership of land, wherehy the vendee, having no knowledge of the title, was induced to purchase, the complaint need not allege that, at the tíme of making such statement, defendant knew it was not owner, nor that the representation was fraudulently made to induce the purchase.</p> <p>2. Samis.</p> <p>An action for damages for false representations as to title, made in a sale of lands, may be maintained, although the deed contained no covenants.</p> <p>8. Wkit ov Error — Review—Demurrer.</p> <p>On writ of error from a judgment sustaining a demurrer to an amended complaint, suggestions made by the defendant in error, based upon the answer to the original complaint, cannot be considered.</p> <p>i. Limitation on Actions — Pleading-Demurrer.</p> <p>Under the Colorado Code and practice, a general demurrer on the ground that the complaint fails to state a cause of action does not raise the question of the effect of the statute of limitations.</p>

<p>1. ASSIGHSTMENT FOB BENEFIT OF CREDITORS — FBAUD - - RIGHTS OF CREDITORS— Attachment.</p> <p>Plaintiff sued a merchant in the Indian Territory for a debt, (in which suit he subsequently had judgment,) and on the same day sued out an order of attachment, and placed it in the hands of the deputy marshal, whereby, under the statutes of Arkansas in force in the Indian Territory, (Mansf. Dig. § 325,) it became a lien on all defendant’s property which had not then been assigned. On the same day the defendant made a general assignment, preferring certain creditors, and joined issue with the plaintiff on the allegations of the affidavit for attachment, — a mode of procedure allowed by the statutes of Arkansas. The assignee filed an inter-pleader, claiming the property under the assignment, and the two issues were tiled together before.a single jury. Meld, that proof that defendant at the commencement of the action was about to sell or dispose of the property with the fraudulent intent to cheat, hinder, or delay his creditors was sufficient to justify a verdict against him. But to justify a verdict against the assignee plaintiff must also prove either that the order of attachment was delivered to the deputy marshal, before the delivery and acceptance of the assignment, or that the assignee had knowledge of and took part in the defendant’s fraud.</p> <p>S. Same — Practice.</p> <p>In such a case the better practice is to first and separately try to the court the issue between plaintiff and the assignor, arising under the attachment affidavit, and thereafter try the issue between plaintiff and the assignee. Sanger v. Flow, 48 Fed. Rep. 152, 1 O. O. A. 56, followed.</p> <p>3. Same — Instructions.</p> <p>An instruction that the jury, before rendering a verdict for plaintiff, must find that the assignee was aware of or participated in defendant’s fraud, was erroneous, in that such proof was not necessary to a verdict for plaintiff against the assignor only, nor even against the assignee, if the order of attachment was delivered to the marshal before the delivery and acceptance of the assignment; for in that event the assignee took the property subject to the lien of the attachment.</p> <p>■1 Same — Evidence of Fraud.</p> <p>The preference by an assignor for tlie benefit of creditors of one creditor for $1,500, knowing that he owed such creditor bat $500, with the intent to subsequently direct the application of the surplus $1,000 to the payment of another debt, not preferred, is conclusive evidence against the assignor of the fraudulent character of the assignment. Ifarwell v. Maxwell, 34 Fed. Sep. 727, distinguished.</p> <p>6. Same — Assignment and Attachment — Priority—Burden of Proof.</p> <p>The burden of proof was on the assignee to establish the delivery and acceptance of the assignment before the order of attachment came to the hands of the marshal; and, it appearing that the assignment was not acknowledged or filed until after that time; that the assignee was not in the town where it was drawn and signed on the day of its execution; and that the only delivery (which seems to have been before the assignment was acknowledged, and before the order of attachment was delivered) was to an attorney at law, whose power to bind the assignee by his receipt and acceptance of it is not established, — such evidence is not such conclusive proof of the priority of the assignment as to render the erroneous instructions immaterial.</p> <p>6. Attachment — When Authorized — Defrauding Creditors.</p> <p>Where, under Mansf. Dig. § 309, which provides, that a pi a in tiff may have an attachment when the defendant has sold, conveyed, or otherwise disposed of his property with the fraudulent intent to cheat, hinder, or delay lfis creditors, or is about to sell, convey, or otherwise dispose of it with such intent, the plaintiff alleges only that the defendant is about to sell or convey his property with such intent, an instruction that the plaintiff must prove that the defendant had, at the date of issuing the attachment, sold or disposed of his property with such fraudulent intent is erroneous, for proof that he was about to do so with such intent is sufficient.</p>

<p>1. Municipal Corporations — Bonds—Validity.</p> <p>Under Mills’ Ann. St. Colo. § 4431, the proper method of procedure in the issuing of town bonds to fund a floating debt, as provided for in section 4541, is by an ordinance of the board of trustees, ordering an election.</p> <p>2. Same — Publication of Ordinance.</p> <p>Laws Colo. 1887, p. 445, § 1, provides that all town ordinances shall be recorded in a book kept for that purpose, and authenticated by the presiding officer of the board and the clerk, and all by-laws of a general or permanent nature shall be published in some newspaper, and such by-laws and ordinances shall not take effect until the expiration of five days after they are so published, but the book of ordinances provided for in the act shall be prima facie evidence of publication. Held, that an ordinance calling an election to authorize the funding of the floating debt of a town, which was passed, but not recorded or published, never went into effect, and that bonds authorized by such an election were void. 48 Fed. Bep. 278, affirmed.</p> <p>8. Same — Estoppel.</p> <p>A recital in such bonds that they are issued under the ordinance does not estop the town from showing that the ordinance was never published, and is therefore void, since neither the mayor nor clerk, who signed the bonds, have any duty in relation to publishing ordinances, or determining when they had been published according to law. 48 Fed. Bep. 278, and 44 Fed. Rep. 262, affirmed. Dixon Co. v. Field, 4 Sup. Ot. Bep. 315, 111 U. S. 83, followed.</p>

<p>1. Pl-BABING—-A-JIBKDJMEKT—AdDTNS INDIVIDUAL TO JOINT CLAIM.</p> <p>When. suit for a trespass committed by a partnership is brought against individuals as doing business under the firm name, it is not permissible to amend by adding a claim against one partner alone.</p> <p>8. Same—Surplusage.</p> <p>When a suit for a trespass committed by a partnership ^ brought against individuals as doing business under the firm name, it is surplusage, a,nd not allowable, to amend by adding the name of one partner individually, inasmuch as by the form of the action he is already embraced.</p>

<p>Libel — What Constitutes — Words Tending to Injure Business.</p> <p>A circular letter of and concerning an agent and broker for government supply contractors, composed, published, and sent by the secretary of the interior to intending bidders for such supply contracts, and stating that “any interference on the part of W. R. L., [plaintiff,] a former chief of the stationery and printing division, with the business in any way, will not be to the interest of any person or firm represented,” is capable of a libelous interpretation, and a complaint which properly pleads the same is good as against a demurrer.</p>

<p>1. Government Employe — Navy Yards — Suspension—Compensation.</p> <p>The suspension by the commandant of a government navy yard, upon charges preferred, of a foreman mason appointed by him, and receiving a per diem compensation, is equivalent, so far as the right of compensation is concerned, to a dismissal.</p> <p>8. Same.</p> <p>The fact that a board of investigation is subsequently appointed by the secretary of the navy to inquire into the charges against the foreman, which board recommends his dismissal, is not a recognition of his status as a government employe, and the fact that he was not formally dismissed is immaterial.</p> <p>8. Same — Claims for Traveling Expenses.</p> <p>Such foreman cannot recover from the United States ids expenses in traveling from Washington to Mare Island navy yard, Cal., to be present at the investigation, when it appears that his presence in Washington was for the purpose of procuring a reinstatement, and that the board was appointed on his application.</p>

Jn Error to the Circuit Court of the United States for the Northern District of California. ' At Law. Action by the United States against Frederick A. Bee and William Bell, bondsmen of S. A. Foster, to recover an excess of salary paid to Foster while acting as United States consul. The district court gave judgment for plaintiff, but this was reversed on writ of error by the circuit court. Plaintiff brings error.

<p>United States Marshal — Bond—Liability of Sureties — Laches.</p> <p>The failure of the United States to present their claim against the estate of a deceased United States marshal constitutes no defense,, to an action against the sureties on his official bond. Laches can never be imputed to the government in any case brought to enforce a public right.</p>

<p>1. Carriers — INSANE Passenger — Injury to Fellow Passenger.</p> <p>On trial of an action against a railroad company and a sleeping-car company to recover for the death of plaintiff’s intestate, there was proof that deceased, a passenger, while seated in a sleeping car, was approached by an insane person, who made a remark, overheard by the sleeping-car conductor, that “It’s a sad thing that they are trying to kill me, and I am a defenseless man,” and that shortly afterwards he shot deceased, thereby causing death; that such insane person was recognized by the conductor and porters of the sleeping car as having been transported over the line 19 days before, at which time he was in chains, violent, in charge of 'police officers, laboring under a delusion of pursuit by Jews, and expressed regret at having no gun to protect himself. At the time of the shooting he was unattended, and prior thereto had frequently stated to a number of persons that he was pursued by Jews who were trying to kill him, and that he was defenseless. The proof further showed that lie had a dull, heavy, and sullen look, which might indicate insanity, and had applied to the conductor of the train for protection. Held, that an instruction that the defendant railroad company had no right to refuse transportation “on suspicion that such person was dangerous to others from insanity, or any other cause, if such person, at the time of offering to become a passenger, was apparently harmless, and conducted himself in no way different from other passengers applying for passage,” was reversible error, as the jury might fairly infer therefrom that defendant was bound to receive an apparently harmless passenger, though it knew that he was insane in fact, or had grounds of suspicion that by reason thereof he might be dangerous.</p> <p>2. Same — Duty op Carrier — Instructions.</p> <p>In such a case the degree of care imposed upon the carrier is the highest, and an instruction that the railroad company was bound to use the utmost' care and diligence that prudent and careful men should have exercised is erroneous, in comparing the carrier’s legal obligation with any degree of ' care required of prudent men.</p> <p>3. Same.</p> <p>In such a case a judgment in defendant’s favor should be reversed, where, after proper request, the court failed to properly instruct the jury as to the duty and obligation of defendant railway company, or to affirmatively instruct the jury that if the company became chargeable, through its employes, with knowledge of the condition of the insane passenger, it had the right, and it might be its duty, to place him under guard or restraint, or remove him from the cars, if such action was necessary for the protection of the other passengers.</p> <p>L Same.</p> <p>An instruction that the carrier was not obliged to provide guards or means of restraint or confinement, in anticipation of passengers becoming suddenly insane, or that, if the event occurred after the passenger had begun his journey as an apparently sane person, it would be the duty of the earlier to refuse to earry him further than necessary to place him In charge of an officer of the law, and to use all reasonable care to prevent injury to passengers by him in the meantime, places too narrow a limit upon the power and right of the carrier in dealing with insane persons on its trains.</p> <p>5. Same.</p> <p>An instruction limiting the carrier’s right to exercise physical restraint over, or eject, an insane person, to cases wherein the conduct of the insane person indicates that he will probably do violence to those about him, does not adequately inform the jury of the carrier’s power and right, as a reasonable possibility as well as a probability of danger may require action.</p> <p>8. Same</p> <p>Nor are the carrier’s duty and obligation properly defined by an instruction that the law did not justify restraint if the insane person was neither violent in word or aci, and the only outward indications of insanity were expressions of fear and apprehension of violence, as the jury might infer that no physical restraint could be exercised so long as the insane person remained quiet.</p> <p>7. Same.</p> <p>The railroad company would not be negligent, by reason of nonaction, if its employes,, exercising the high degree of care demanded of them, could not have reasonably anticipated the effect of failure to restrain or eject such insane passenger.</p> <p>8. Same.</p> <p>To charge the defendant railway company with the duty of restraint, it need not necessarily have been foreseen that the killing would take place unless for such restraint. If a reasonable possibility of injury to any of the passengers could have been foreseen, the obligation arose to take proper action for their protection, although it could not he anticipated which one of the passengers might, be injured by such insane person, nor whether his violence would cause death or not.</p> <p>9. Same — Sleeping-Cab Companies.</p> <p>Instructing the jury that the sleeping-car company was not a common carrier, but failing to charge that such company had the right to restrain or eject the insane passenger, was erroneous, in that, from the entire charge, the jury might naturally infer that such company’s rights were oven more limited than those of the railroad company.</p>

<p>1. False Claims against the United States — Presentation—Suit for Penalties — Degree of Proof Required.</p> <p>In a suit under Bey. St. § 3490, to recover the double damages and forfeiture prescribed against any one presenting a false or fraudulent claim against the United States to one of its officers for payment or approval, the government must prove its case beyond a reasonable doubt,- and .defendant may introduce .evidence of good character, for the proceeding, while civil in form, is criminal in its nature and effect.</p> <p>8. Same — Evidence of Intent.</p> <p>In such a suit the governmeut must show that defendant not only presented a false or fraudulent claim, but that he knew it to be such; and the jury are not warranted in inferring such knowledge merely from the fact that he acted negligently and without ordinary business prudence; they must at least be satisfied that he was aware of circumstances such as would induce an ordinarily intelligent and prudent man to believe the vouchers to be false.</p> <p>8. Appeal — Bbvibw—Harmless Error.</p> <p>No judgment should be reversed for an error which could not have prejudiced the rights of the party against whom the ruling was made.</p> <p>4. Same — General Objections to Evidence.</p> <p>A mere objection, where no grounds for it are assigned at the trial, cannot be considered in an appellate court. Burton v. Driggs, 20 Wall. 125, approved and followed.</p> <p>5. Trial — Province of Court and Jury — Directing Verdicts.</p> <p>It is the duty of a federal trial court to direct a verdict for defendant when the evidence is such that, in the exercise of a sound judicial discretion, it would he compelled to set aside a verdict returned in favor of plaintiff. Railroad Go. v. Davis, 53 Fed. Rep. 61, and Monroe v. Insurance Go., 52 Fed. Rep. 777, followed.</p>

At Law. Indictment of Lotta Ducournau for carrying on the business of a retail dealer in malt liquors without a license. On motion to set aside a verdict of conviction.

<p>Application by J. W. Ham for Discharge on Habeas Corpus from the custody of Charles E. Chapel, sheriff of Eamsey county, Minn.</p>

Application by Battle & Co., chemists, for a review of the board of general appraisers’ decision as to the classification of certain imports of chloral hydrate. The circuit court held that the goods were dutiable under paragraph 76, Schedule A, of the act of October 1, 1890. 50 Fed Kep. 402. The United States appeals. Statement by CALDWELL, Circuit Judge: This is an appeal from the judgment of the circuit court of the United States for the eastern district of Missouri.

Appeal by the importer from decision of the board of general appraisers affirming the decision of the collector of the port of New York.

<p>Customs Dutiks — Coods in Bond — Addition u, Duty.</p> <p>Rev. St. § 2970, providing for an ex'ra duty of 10 per cent, on goo&i remaining in a bonded warehouse longer ¡han a year, is repealed by Act Oct. 1, 1890, § 50, and under die latter act such additional duty cannot ?js levied upon goods which had been in bond more than a year before October (>. 1890, (when the act of 1890 went into effect,) and were withdrawn in January, 1891. U. S. v. McGrath, 50 Fed. Itep. 404, approved.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Missouri. •</p> <p>Proceeding by Prank. L. Davis to review a decision by the board •of general appraisers affirming the decision of the surveyor of customs at St. Louis in assessing duties on marble mosaics for pavements. The circuit court reversed the decision. The United States appeal.</p> <p>Statement by SHIRAS, District Judge:</p> <p>On the 13th of December, 1890, Frank L. Davis, the appellee, entered at the port of St. Louis 10 cases containing pieces of marble from three eighths to seven eighths of an inch in length and breadth, and pasted on paper, forming blocks about 12 by 24 inches, and 1 case containing the same kind of pieces of marble, not attached to paper, but loose in bags; and on the ISth of December, 1890, the appellee entered a further importation of 22 cases, containing like pieces of marble, all of which were attached to paper. The surveyor of customs at St. Louis assessed these importations as manufactures of marble, and therefore dutiable, under the act of congress approved October 1, 1S90, at the rate of 50 per cent, ad valorem. The duty thus assessed was paid by the importer under protest, it being claimed that the articles were marble paving tiles, and therefore subject to .the duty of $1.10 per cubic foot, and appeals from the ruling of the surveyor of customs were duly prosecuted to the board of general appraisers at the city of New York under the provisions of section 14 of the act of congress approved dime 10, 1890, (26 St. at Large, p. 131.) The board of appraisers affirmed the decision of the surveyor of the port of entry, holding that the imported articles were manufactures of marble, and thereupon the importer applied to the circuit court of the United States for the eastern district of Missouri for a review of the questions of law and fact involved in the matter in controversy according to the provisions of section 15 of said act of June 10, 1890, and upon the hearing thus had before the circuit court it was adjudged that the articles imported were dutiable as marble paving tiles, and that the importer was entitled to judgment for the excessive duties collected of him, amounting to the sum of $521.33. From this decision and judgment the United States appealed to this court, and thus the question is presented whether the imported articles should be deemed to be manufactures of marble or marble paving tiles in classifying the same for assessment under the provisions of the act of ■congress of October 1. 1890.</p>

<p>Customs Duties — Globia Cloth.</p> <p>Gloria clotli, composed of silk and worsted, and weighing less than 4 ounces to the square yard, and used for women’s and children’s dresses, is dutiable at 12 cents per square yard and 50 per cent, ad valorem, as “women’s and children’s dress goods,” or “goods of similar description and character, composed wholly or in part of wool, worsted,” etc., under paragraph 395 of the tariff act of October 1, 1890, and not at 50 per cent, ad valorem, as a “manufacture of silk, or of which silk is the component material of chief value,” under paragraph 414. Hartranft v. Meyer, 10 Sup. Ct. Rep. 751, 135 U. S. 237, distinguished.</p>

Proceeding by the Kursheedt Manufacturing Company to review the decision of the board of general appraisers assessing a duty of 40 per cent, ad valorem on “velveteen dress facings.” The circuit court affirmed the decision. 49 Fed. Rep. 633. The United States appeals.

<p>Customs Duties — Classification-—" Feather-Stitched Braids.</p> <p>So-called “feather-stitched braids,” being an article from one quarter to one ibird of an inch in bread» b, woven on a loom, and ornamented with certain patterns, “herring bono” and others, are dutiable as cotton braids, under Schedule 1, par. 354, of the tariff act of October 1, 1890, and not as cotton trimmings tinder Schedule J, par. 373, of said act, as classified by the collector of customs of New York.</p>

<p>Appeal from the Circuit Court of the United State for the District of New Jersey.</p> <p>In Equity. Bill by the SiemensfLungren Company against the American Gas Controller & Fixture Company for infringement of letters patent No. 299,660, and oí claims 1, 2, anti 4 of Ño. 282,337, issued to Andrew B. Lipsey, respectively, June 3, 1884, and July 31, 1883, for improvements in gas lamps. The infringement alleged consisted in the manufacture and salo oí the so-called “Arc Gas Lamp.” A motion for a preliminary injunction having been heard, the court made an order that defendant within 15 days file a bond in the clerk’s office in the sum of §15,000, in default whereof a preliminary injunction should issue pursuant to the prayer of the bill. Defendant having failed to file the bond an injunction was issued, and from this interlocutory order defendant appeals. Appeal dismissed.</p> <p>The injunction was asked for,on the following grounds: (1) Clear infringement^ (2) undisturbed possession and acquiescence; (3) total irresponsibility at the defendants. The defenses were: (1) Noiiinimigeinent; (2) anticipation by certain patents to Westphal and others, all of which were subsequent to J8S1; (3) anticipation by or Insufficiency of invention in view of the patent to Siemens, No. 211,077, of May 3, 1881, based upon the prior French and German patents to Siemens. In order to avoid the effect of these alleged anticipations, plaintiff offered evidence to carry back the Lipsey invention to March, 1881, as adjudged by the patent office in certain interference proceedings in the case of Lipsey v. Sanderson.</p>

<p>In Equity. Bill by luma, J. Felix against Eugene P. Ledos and Bobeit L. Matches, trading under the firm name of E. P. Ledos & Co., for infringement of a patent.</p>

In Equity. Suit by the Fuller & Warren Company against the town of Arlington for infringement of letters patent No. 264,568, issued September 19, 1882, to William S. Ross, for furnaces for privies. The first claim of the patent reads as follows: (1) As an attachment for a privy, a horizontal, metallic casing, constituting the depository for the fecal matter, and provided with the hinged lids and fire chamber, substantially as set forth.”

<p>L Patents fob Inventions —Motion rob Pkemminaby Injunction — ⅞¶¾0¶ or Pbiob Decisions.</p> <p>Letters patent i\’o. 14,373, issued October 30, 1883, to George A. Macbeth, as assignee of Henry Dietrich, for a design for lamp chimneys, having been sustained on final hearing in two suits, and preliminary injunctions having been granted in two other suits, in another circuit court, its validity must be taken as established for the purposes of a motion for preliminary injunction, although defendant files affidavits alleged to contain new evidence of certain prior uses.</p> <p>& Same — Inebingement.</p> <p>On a motion for preliminary injunction against the infringement of a patent, the court will not go into the questions of infringement and validity as on final hearing, although numerous affidavits are filed by both parties, covering about all the ground of a record on final hearing, but, it appearing that defendant is upon debatable ground, will refuse an injunction, and require Mm to give a bond covering probable profits and damages, and to keep an account of Ms manufactures and sales, to be produced when called for by the court</p>

<p>In Equity. Bill by Macbeth and others against Gillinder and others for infringement of a design patent.</p>

In Equity. Bill by Macbeth, and others against Gillinder and others, constituting the firm of Gillinder & Sons, for infringement of letters patent No. 14,373, granted October 30, 1883, to George A. Macbeth, as assignee of Henry Dietrichs, for designs for lamp chimneys. The patent was heretofore sustained, and an injunction granted. 54 Fed. Rep. 169. The cause is now heard on motion for an attachment for violating the injunction.

<p>In Equity. Bill by Macbeth & Go. against the Braddock Glass Company, Limited, and others, for infringement of letters patent No. 14,3*73, granted October 30, 1883, to George A. Macbeth, as assignee of Henry Dietrich, for designs for lamp chimneys. Heard on motion foi* preliminary injunction.</p>

<p>1. Thadb-Mark — Equity—Deceiving the Public.</p> <p>While a, court of equity will not protect a trade-mark based on misrepresentation and deceit, and intended to deceive and defraud the public, yet where the testimony in an action to enjoin an infringement fails to show that plaintiff has attempted to practice any fraud, or impose upon and damage the public, the court will not refuse to extend its aid.</p> <p>3. Same — -What will bk Protected — -“Sybup of Pigs.”</p> <p>The phrase “Byrap of Pigs” adopted by the manufacturer to designate a medical preparation, composed in part of fig syrup, and which, during a course of trade, has become known to the public by such name, indicates the origin of the preparation, rather than its quality or nature, and constitutes a valid trade-mark.</p> <p>8. Same — Infringement.</p> <p>The use, to designate'a medical preparation, of the phrase “Improved Pig Syrup” upon bottles, wrappers, and devices, resembling in appearance a similar preparation manufactured and sold under the name of “Syrup of Pigs,” and calculated to deceive and mislead the public, will be enjoined as an infringement of trade-mark.</p>

<p>1. Copyright -Form or Notice.</p> <p>Act June 18, 1874, (18 St. at Large, p. 78,) prescribes the following alternative form of notice of claim of copyright: “Copyright, 18 — , by A. B.” Held, that the following notice on a map: “Copyright entered according to act of congress 1889, by T. C. Hefei, civil engineer,” — is sufficient, since it differs from the prescribed formula only by including words which are more surplusage.</p> <p>2. Same — Statutes—Oostliotisg Pitovisiom</p> <p>Act June 18, 1874, relating to copyright, (18 St. at Large, p. 78,) prevails over Rev. St. 1878, § 4902, with which it is in conflict, by virtue of Itev. St. § 5001, which provide*; that acts passed alter December 1, 1873, are to be taken as passed subsequent to the revision.</p>

<p>Appeal from tbe District Court of tbe United States for the Eastern District; of New York.</p> <p>In Admiralty. Libel by Stevens and others against tbe steamship City of New York for collision. Decree for libelants. Respondent appeals.</p>

<p>DümüRRA&e — Liability os' Consiskee — Gjiatjs Blockade.</p> <p>Two vcsselsjaden with grain 1'rom Chicago arrived at Buffalo on Friday at 6 V. M.. consigned to elevators with New York Central Bailroad connections. There were 28 boats ahead of them. The amount of grain in Buffalo awaiting transshipment east was unprecedented, and navigation was about to close. There was no demand that the consignees or their agents should famish another elevator, and no claim for damages was made until after the grain was unloaded. The consignees were not negligent in failing to procure an elevator before Monday, and it did not clearly appear that during the following week any other elevator could have released the vessels sooner than that to which they were consigned, and certainly none with New York Central connections could have done so. There was i'o slip ala tion as to lay days. Held, that die consignees were not liable for the damage resulting to the ship owner from a delay of 10 days in unloading.</p>

<p>1. Shipping — Bottomry Bond — Amount—Estoppel.</p> <p>Recitals in. a bottomry bond of tbe amount of advances secured thereby are evidence of tbe true amount, but do not estop tbe obligor from showing tbat tbe amount was in fact less.</p> <p>8. Same — Advances on Obligee’s Credit.</p> <p>A ship about to depart on a voyage to a foreign country was subject to liens for necessaries furnished by her agent, and for advances made by others- on his credit. Tbe agent rendered to tbe owner’s attorney in fact an account which included such advances, and thereupon tbe attorney, without questioning them, gave a bottomry bond for an amount sufficient to cover tbe whole account. Tbe bond was expressed to cover certain specified contingent liabilities of tbe agent, and “moneys paid.” Meld, tbat it would be construed to include tbe agent’s liability for such advances.</p> <p>8. Same — Commissions.</p> <p>Tbe bond should also be construed to cover commissions earned by tbe agent upon money collected by him, and credited in tbe account which was rendered to tbe attorney in fact.</p> <p>4. Same. .</p> <p>Tbe obligee bad a right to use money received for freight after tbe date of tbe bond in payment of wages and other expenses incident to tbe projected voyage, and to meet other debts contracted for by him for tbe benefit of tbe vessel, and not secured by tbe bond.</p> <p>5. Same — Asency.</p> <p>A promise by an agent for a vessel, to her owners, that she should not be sent on a voyage unless her freight outward bound amounted to a certain sum, is revoked by a bottomry bond subsequently given by the owner's attorney in fact to secure advances by such agent, in which it is recited that the ship is bound on a certain v'oyage; and all responsibility for such voyage rests upon the owner o£ the ship, who cannot sustain a counterclaim to an action on the bond on the ground that the agreed amount of the freight was not secured.</p> <p>6. AmiiEALTY: — Appeal.</p> <p>An admiralty case on appeal should not be remanded for a new trial because of the erroneous rejection of evidence, since the appeal is itself a new trial, and such evidence, if offered, would be received and considered by the appellate court. The Portland and The State of California, 49 Fed. Eep. 172,1 C. 0. A. 224, distinguished.</p> <p>7. Same — EvideNCE.</p> <p>An appellate court should not receive as new evidence in an admiralty case a deposition by a witness who testified in the trial below concerning the very matters referred to in the deposition, when no ground for introducing additional proof is shown.</p>

<p>1. Salvage — Compensation.</p> <p>A towboat with a disabled steamship worth $130,000 in tow, under a contract of towage from Turk’s island to Now York, which provided that there should be no claim for assistance, salvage, or other services, broke a propeller blade, parted her hawser, and abandoned the tow off the Hal-teras Shoals in a hurricane. The vessel so abandoned was with much difficulty and danger taken in tow by si. passing freight and passenger steamship, worth $350,000, plying on a regular schedule between New York and Savannah, and taken into Hampton Roads, the hawsers being twice parted on the way, and the towing vessel’s bits being tom out. The rescuing vessel lost her regular return tiip, and her cargo of vegetables and fruit perished from the delay. Held, that an award of $30,000 salvage was not so excessive as to be disturbed on appeal.</p> <p>55. Same — Oontbact—Abandonment ov Tow.</p> <p>After the abandonment two other towboats, dispatched by the towing company, met the rescuing steamship with the disabled vessel in tow, and, although their services were refused, passed a hawser to the disabled steamship, and joined in the towage, until near Gape Henry, when they cast off. Held, that the towing company could not recover on the contract, nor for salvage.</p> <p>8. Same.</p> <p>The fact that, for a portion of the voyage, the rescuing steamship towed with the steel hawser of the towboat, which, after parting at the time of abandonment, had boon hauled aboard the disabled boat, gave the towing company no right to salvage.</p>

<p>Marttime Lieu — Repaiiss and Supplies — Foreign Corporation — Owner— Agent’s Order — Credit or Ship — Advertising Bills not a Maritime Service.</p> <p>TIio passenger steamboat H. was employed in making daily trips with flailing parlies from New York outside of Sandy Hook. She was owned by a New Jersey corporation. Tile four stockholders resided in New York. The business of the company was done on board the steamer. They had; an office in Jersey City for the transfer of stock. Mr. S., one of the stockholders, was vice president of the company and general manager, who ran with the boat on her trips, and ordered, directly or Indirectly, all supplies and repairs. The company had no other property, and no reputation or credit. Most of those furnishing supplies supposed Mr. S. to be the master, and all the supplies were furnished on the credit of the ship, field, that the supply men had a maritime lien, excepting a bill for advertising the steamer’s excursions in order to get business, which, not being a maritime service, had no lien.</p>

In Admiralty. Libel by the Thames Towboat Company, owner of the barge Afton, against the steam tug Royal (the Newton Creek Towing Company, claimant) and the ferryboat Superior, (the Brooklyn 8c New York Ferry Company, claimant,) for collision. The district court dismissed the libel as against the Superior, and entered a decree against the Royal. The Newton Creek Towing Company appeals.

<p>1. COLLISION — OVERTAKING VESSEL — MlSSING STAYS.</p> <p>Two schooners were beating up the coast, the B. following in close proximity to the 0., and gaining slightly on her. The C. went about, and immediately afterwards the B. attempted to do the same, but misstayed, and, gathering sternway, got under the bow of the C., and was struck by her. The B. had misstayed once before that morning. Held, that the B., knowing her liability to misstay, was in fault in following the O. so closely as to render it necessary for her to tack when the G. did. 42 Fed. Rep. 336, affirmed. .</p> <p>2. Same.</p> <p>The C. was not at fault in dropping her peak after she discovered the danger, for the action, if improper, was in extremis.</p>

<p>L Dower — Abolitions' by Statute — Effect as to Existimo Marriages.</p> <p>At a time when the right of dower existed in Washington Territory, & husband conveyed land without joining his wile in the deed, and, at †⅞⅛ time of his death. 1 Hill’s Ann. St. & Codes Wash. §§ 1405, 1482, abolishing the right of dower, were in force. Held, that the widow was not entitled to dower in the land so conveyed. 47 Fed. Rep. 854, affirmed.</p> <p>5. Same — Constitutional Law — Legislative Powers.</p> <p>An inchoate right ol' dower is not such a vested right or interest as csm-not be taken away by legislative action. 47 Fed. Rep, 854. affirmed. Davis v. O'Perrall, 4 G. Greene. 168; Young v. Wolcott, 1 Iowa, 174; Q’FerraKL v, Simplot, 4 Iowa, 881-400; Tierce v. O’Brien, 29 Fed. Sep. 402, — distinguished</p> <p>8. Same — Construction of Statute — Retrostective Orbration.</p> <p>The inchoate right of dower, as it existed in Washington Territory prior to Laws Nov. 14,-1879, § 18, (1 Hill’s Ann. St. & Codes Wash. § 1482,) which, abolished dower, was not a right “established, accrued, or accruing,” sn to which, by section 31, such act was not to bo construed as operating retrospectively.</p> <p>6, Constitutional Law — Titles op Laws — Objects Expressed.</p> <p>S-eotion 3 of Laws Wash. T. Nov. 12, 1875, entitled “An act to regulate the descent of real estate, and the distribution of personal property,” and providing that “the provisions of section 3 (1 Hill’s Ann. St. & Codes Wash. § 1480) as to the inheritance of the husband and wife from each other, apply only to the separate property of 1ho decedents, and take the place of tenancy in dower and tenancy by the curtesy, which are hereby abolished,” is not void for the reason that it is not embraced within the objects of the law within which it is found and enacted.</p>

In Equity. Suit by the Babcock & Wilcox Company against the World’s Columbian Exposition Company and others to enjoin the defendants from allowing the Sterling Boiler Company to put its boilers in machinery hah.

<p>In Equity. Bill by Forest L. Putnam against Louis Ruch and others to hare a receiver appointed, and for other relief touching property of the Orescent City Live-Stock Landing & Slaughterhouse Company, -which plaintiff claimed had become extinct by constitutional provision. Heard on application for the appointment of a receiver and for an injunction pendente lite.</p>

<p>1. Bail Bonds — Ens-obokmhnt in Federal Ooukts — State Laws.</p> <p>While, under liev. St. § 1014, all proceedings for holding accused persons to bail to answer before a federal court, are assimilated to the proceedings in vogue for similar purposes in the state where the proceedings take place, still, in enforcing a forfeited bond taken in a criminal case, the United States is not restricted to the remedies provided by the laws of the state, but may proceed according to the common law. Hence a forfeited bond may be proceeded, on by scire facias in Kansas, though by the Kansas law an independent action is necessary.</p> <p>⅝. Judicial Sale — Deed—Abatement and Revival of Actions.</p> <p>Where a sale is had and approved, and a deed ordered, and before its execution the judgment debtor dies, it is not necessary to revive proceedings in the name of the heirs or legal representatives before the deed is executed.</p>

<p>Appeal from the Circuit Court oí the United States for the Northern District of Florida.</p> <p>In Equity. Bill for injunction brought by James A. Bussell, David M. Yeomans, and Horace Scott against John N. C. Stockton, S. L. Earle, Thomas P. Denham, Arthur Meigs, and the Jacksonville, .Mayport & Pablo Bailway & Navigation Company. Decree for complainants. Defendants appeal.</p>

In Equity. On petition of tbe United States for rule against Noel E. Turner for contempt in violating an injunction against operating a railroad over government lands.

<p>In Equity. Bill by Charles A. de Chambrun against Douglas Campbell and Prances A. Gesner for a discovery and accounting. Upon complainant’s death, Pierre de Chambrun, his administrator, was substituted.</p>

<p>In Equity. BUI by Harold R. Lewis against George J. Weaver Loper for a copartnership accounting.</p>

<p>1. Dedication — Description in Deed — Nuisances.</p> <p>Tbe owner of a tract of land laid it out in lots and streets, and conveyed to D. (whose title passed to the plaintiffs) two of the lots, described in the deed as lots of the plan, and as abutting on a street, and then conveyed tho tract, as a whole, to the defendant; the deed to him reciting the previous deeds to D., and excepting tho land thereby conveyed. The defendant commenced to erect coke ovens wthin the lines of the street directly in front of the plaintiffs’ lots and close tp their dwelling house. Reid, (a) that by the conveyance to D. the street called for as a boundary was irrevocably dedicated as a public way for the use of the owners of said two lots, and that the defendant was affected with notice, and could not interfere with the plaintiffs’ use thereof; (b) that the contemplated coiling operations -would be a hurtful and dangerous nuisance to the plaintiffs’ property; and on both grounds the plaintiffs were entitled to equitable relief.</p> <p>2. Circuit Courts — Jurisdictional Amount.</p> <p>The plaintiffs’ allegation contained in the bill, as to the amount of the threatened damage to their property, is here the criterion of jurisdiction; it appearing that the claim made is not colorable, nor so extravagant as to be beyond a reasonable expectation of its allowance by a judicial tribunal.</p> <p>8. Same.</p> <p>Where life tenants and remainder-men join as plaintiffs in a bill seeking a preventive remedy against threatened injury to, and destruction of,* the corpus of the estate, their case falls within the principle that if several persons have a common, undivided interest, although separable as between themselves, the amount of their joint interest is the test of jurisdiction.</p>

In Equity. Suit by the (Northern Pacific Railroad Company against Charles W. Cannon and others to quiet complainant’s title lo certain lands. A demurrer to the bill was sustained. 46 Fed. Rep. 237. Complainant appeals.

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>Action by John Turck against the Colorado Central Consolidated Mining Company to recover possession of a lode or vein known as the “Aliunde Tunnel Lode No. 2,” situated in the Argentine mining district, Clear Creek county, Colo. There was a verdict and judgment for plaintiff, and defendant sued out a writ of'error. The judgment was heretofore affirmed, (50 Fed. Rep. 888, 2 C. O. A. 67,) and defendant now petitions for a rehearing.</p>

<p>Appeal — Review—Waivp/r op Objection.</p> <p>Rev. St. § 700, which declares that, when there is a special finding In a case in which a jury has been waived, the review of the judgment “may extend to the determination of the sufficiency of the facts found to support the" judgment,” does not authorize a reversal of a judgment for alleged errors in the findings, where no objection was taken or exception reserved in the trial court.</p>

Action of ejectment brought by Weston Arnold against George L. Woolsey and others to recover blocks 1, 84, 182, and lots 1, 2, and 3, in block G, in Kearney. A jury was waived, and the case submitted to the court on an agreed statement of facts. Judgment was rendered for defendants, and plaintiff brings error. On motion to dismiss the writ of error.

<p>In Error to the Circuit Court of the United States for the District of Nebraska.</p> <p>Action by Thomas Ewing against Walter J. Lamb and Lorenzo W. Billingsley upon a bond given for the repayment of money into court. Judgment for plaintiff. Defendants bring error.</p> <p>Statement by SHURAS, District Judge:</p> <p>On the trial of this ease in the court below a jury was waived, and from the findings of fact mads by the court the following statement is condensed, sufficient of the material facts being stated to show the applicability of the points made by counsel in support of the errors assigned:</p> <p>On the 17th of November, 1S75, Charles W. Seymore and William W. Wardell recovered judgment in an action at law against William P. Young for the sum of $6,500 in the United States circuit court for the district of Nebraska. Upon tlie assumption that the provisions of the statutes of Nebraska authorizing a stay of execution upon giving security as therein provided could be availed of by a defendant in the United States courts in Nebraska, a stay bond was executed by William P. Young, with five sureties, including one Milton F. Lamaster, and filed with tlie clerk. Upon the expiration of the time of the stay of execution, as provided for by the statutes of the state, and in accordance with the provisions thereof, the clerk issued an execution against William P. Young and the several sureties on the stay bond, which writ was by the marshal levied upon certain realty belonging to Milton F. Lamaster, one of the sureties on the bond; and a sale of the property was had in due form, the same being purchased by Thomas Ewing for the sum of $5,600. Upon a report- made of this sale to the court, .the same was confirmed, and a marshal’s deed was executed and delivered to the purchaser, and an order was entered directing the marshal, upon the execution of a good and sufficient bond, to be approved by the judge or clerk, and conditioned for the repayment into court of the purchase money in case the order confirming the sale should be reversed by the supreme court, to pay to the several claimants the share due them of the money realized from the sale of the realty as stated. It further appears that by an assignment duly made by the plaintiffs in the judgment against William P. Young there had been assigned to S. W. Little and D. B. Alexander an interest therein to the amount of $2,000. It further appears that the marshal paid over to the clerk of the court the money by him collected on the execution sale of the property of Lamaster, as above stated, and for the purpose of obtaining from the clerk the amount due them as assignees of part of said judgment against Young the following bond was executed by S. W. Little and D. B. Alexander, with Walter .L.Lamb and Lorenzo W. Billingsley as sureties:</p> <p>“In th9 Circuit Court of the United States for the District of Nebraska.</p> <p>“Charles W. Seymore and William W. Wardell, Plaintiffs, vs. William P. Young, Defendant.</p> <p>“Bond for the Repayment of Money into Court.</p> <p>“Know all men by these presents that we, S. W. Little and D. B. Alexander, as principals, and W. J. Lamb and L. W. Billingsley, as sureties, of Lancaster county, state of Nebraska, are held and firmly bound unto Elmer D. Frank, clerk of the United States circuit court for the district of Nebraska, in the sum of thirty-four hundred dollars, good and lawful money of the United Slates, to T>e pawl to the said Elmer D. Frank, clerk of the United States court, as aforesaid, life executors, administrators, and assigns, for which payment, well and truly to be made, we hind ourselves, our heirs, our executors, and administrators firmly by these presents. Sealed with our seals, and dated the 3rd day oí May, A. D. 1884. Tho condition of tho above obligation is such that whereas, on the 29th day of January, A. I). 1882, Hon. Elmer S. Dundy, judge of the circuit court of the United States for the district of Nebraska, made the following order in tho above-entitled canse, then pending in said court, to wit:</p> <p>.‘“Seymore & Warden v. Young. 138 O.</p> <p>“‘It is ordered in the above case that upon giving a good and sufficient bond to the approval of tho judge or clerk, conditioned for tho repayment into court of the purchase money in case the order of confirmation in this case Is reversed by the supreme court of tho United States, the marshal pay to tho said complainant from tho purchase money received in said case to each one entitled thereto, as his or her interest may appear, bond to be given in doublo the amount of money to bo paid to any person or party entitled to the same, and tho marshal is further directed to make and deliver to the purchaser.</p> <p>[Signed] _ “'Elmer S. Dundy, Judge.’</p> <p>“And whereas, it appears from the records of said court in said cause that S. W. Lit ¡lo and D. B. Alexander are entitled to receive the sum of $1,485 of said purchase money; and whereas, the United States marshal of said court has paid all of said purchase money into the hands of the clerk of said court, and by bim placed in the registry of said court since said order was made; and whereas, the said Elmer D. Frank, clerk of said court, has this day paid to the said S. W. Little and D. B. Alexander out of said purchase money the said sum of fourteen hundred and eighty-five dollars upon the terms of the above and foregoing order of the said court: Now if the above S. W. Little and D. B. Alexander, as principals, and W. J. Lamb and L. W. Billingsley, as sureties, shall well and truly comply with the order of said court as herein-before set forth in relation to the said sum of fourteen hundred and eighty-five dollars, received as aforesaid by tho said S. W. Little and D. B. Alexander, then this obligation to be void; otherwise to remain in full force and effect. All erasures and Interlineations made before signing.”</p> <p>Upon the filing and approval of this bond, tho court made an order directing the clork to pay to said Little and Alexander, out of the funds in the registry of tho court, the proportionate share coming to them as owners of tho interest assigned them in tho original judgment, and in pursuance of this order the clerk paid them the sum of $1,485.</p> <p>On the 17th of July, 1882, Thomas Ewing, for the consideration of ⅞5,600, sold and conveyed the realty by bim bought at the marshal’s sale to John W. Keeler, warranting his title thereto. Thereupon Keeler brought an action of ejectment in the United States circuit court for the district of Nebraska against Lamastcr, claiming title to the land through the proceedings hereinbe-fore recited, and in the circuit court obtained judgment in his favor. Tho caso was carried by writ of error to the supreme court of tho United States, and tho judgment below was reversed, the court holding that the provisions of the state statute of Nebraska, adopted in 1875, in regard to a stay of execution, including tho mode of extending the judgment against the sureties on the bond, and issuing execution against their property in case of default, not being in force when section 916 of tbo Revised Statutes of the United States was enacted, and never having been adopted by a rule of the federal court, did net, therefore, authorize the act of the clerk of the circuit court in extending the judgment against the sureties on the bond, and, as a consequence, the issuance of execution and the levy on the property of the surety, and the sale thereof, were wholly void, and conveyed no title to Ewing, the purchaser, or to his grantee, Keeler. See Lamaster v. Keeler, 123 U. S. 376, 8 Sup. CJt. Rep. 197. No direct action, by appeal to the supreme court or otherwise, was taken in the case of Charles W. Seymore and William W. Wardell to vacate or reverse tho order confirming the sale made by the marshal.</p> <p>Upon tlie rendition of the judgment of the supreme court, holding that the sale and deed of the realty to Ewing were wholly void, and conveyed to him no title therein, Ewing made a settlement in full with his grantee, Keeler, repaying him the sum due him under the covenants of warranty contained in the deed to him. After the mandate from the supreme court was filed in the circuit court in the case of Lam aster v. Keeler, a motion was made in the original case of Charles W. Seymore and William W. Warden v. William P. Xoung for an order directing the repayment into court of the sum of $1,485, being the amount paid out of the registry of the court to S. W. Little and D. B. Alexander; and the court, after reciting the facts at length, made an order directing that said sum should be paid into court by the parties executing the bond. It appearing to the court that Thomas Ewing was entitled, as a beneficiary, to enforce performance of the conditions of the bond herein-before set forth, the court made an order directing that said bond should be assigned and set over to said Ewing, which was accordingly done by the clerk of the court, under the seal thereof.</p> <p>The parties to the bond having failed to pay into court the sum ordered, or any part thereof, thereupon, on the-19th of February, 1891, a petition was filed in said circuit court of the United States by Thomas Ewing, and against the principals and sureties in said bond, in which wás recited at length the facts leading up to the execution of the bond, and the other facts herein stated, including the orders of the court made in the premises; and judgment was prayed against the parties to the bond in the sum of $1,485, interest and costs. To this petition the sureties on the bond, Walter J. Lamb and Lorenzo W. Billingsley, entered their appearance, and filed an answer thereto, wherein they denied the jurisdiction of the court, pleaded the statute of limitations, averred that the bond by them executed was taken without authority of law, and was wholly void, and that, if valid, the condition thereof had not been broken, because the order of confirmation of sale had not been taken before the supreme court in any direct proceeding, nor had the same been reversed by the supreme court. The trial court found in favor of the petitioner, and gave judgment for the sum of $1,485, interest and costs, against the sureties on the bond, to reverse which the case has been brought to this court by writ of error sued out by the sureties on the bond.</p>

At Law. Action by Viola W. Burrow against the Kansas City, Ft. Scott & Memphis Railroad Company. Heard on motion to retax costs.

<p>In Error to the Circuit Court of tlie United States for the District of Idaho.</p>

<p>1. Fraudtjuent Conveyances — Evidence—Admissibility.</p> <p>To establish fraud in a transfer of goods, it is competent to prove every fact and circumstance tending to show a fraudulent purpose, including the debtor’s acts, statements, and correspondence, in so far as they indicate fraud or want of consideration; also the kind, quantity, and value of the goods purchased preceding the transfer; the statements made to creditors as to his financial condition at the time of purchasing the goods; the amount and kind of property he owned before his failure, and what disposition he made of it; and the debts he owed after his failure, and when and for what they were contracted, and whether he paid any of these debts after disposing of Ms property.</p> <p>2. Same — Knowledge on? Transferee.</p> <p>A purchaser from a debtor selling to defraud Ms creditors is bound by such knowledge as would put a prudent man upon inquiry.</p> <p>8. Same — Crams op Wife.</p> <p>Where a husband tells Ms wife that certain land of his shall be considered hers, but afterwards the husband sells the land, and invests the proceeds in busmess, the wife cannot claim, as against the husband’s creditors, that the said proceeds are hers.</p> <p>4. Husband and Wife — Wife’s Property — Earnings.</p> <p>Under Oobbey, Consol. St. Neb. 1891, §§ 1411-1414, the earnings of the wife, made while she is living with her husband, and engaged in no separate business, are the property of the husband, and liable to the claims of Ms creditors.</p>

<p>In Error to the Circuit Court of the United States for the Eastern Division of the Southern District of Ohio.</p>

<p>1. Sale — Stoppage in Thansitu — Nature of Right.</p> <p>The true nature and effect of the right of stoppage in transitu is not to rescind the sale, but to enable the seller to enforce his lien for the price, and to that end he is entitled to retake possession, by suit if necessary, and he must then hold the goods until the expiration of the credit, so as to be able to deliver them on payment of the price.</p> <p>⅞. Same — When Right of Stoppage Ends.</p> <p>When goods sold have left the hands of the carrier, reached their destination, and the purchaser has disposed of them to one who gives a bond for the payment of the customs duties, and deposits them in his own name in a bonded warehouse, the seller’s power to exercise the right of stoppage in transitu is gone.</p> <p>8 Same — Bill of Lading — Indoesement.</p> <p>An ocean bill of lading was drawn to “E. H., or assigns.” The drawee was a railroad agent at New York, who attended to the transshipment of goods, and he shipped the goods to San Francisco, and transmitted the bill of lading to the purchaser without indorsement. The purchaser indorsed the bills, and delivered them as security for advances. Before the arrival of the goods the purchaser became insolvent, and the shipper gave notice of stoppage in transitu. Held, that the shipper’s right to retake possession of the goods was unaffected by the purchaser’s indorsement pud transfer of the bill of lading, as, “E. H.” having failed to indorse them. no title to the goods passed. 47 Fed. Kep. 408, reversed. St Paul Koller-Mill Oo. v. Great Western Despatch Co., 27 Fed. Kep. 434, followed.</p> <p>4. Appeal — Review—Objections not Raised Below.</p> <p>In an action to recover personal property, an objection that the complaint alleged that plaintiff was owner thereof, whereas the proof showed that he was entitled to possession under a vendor’s lien, cannot he raised for the first time in the appellate court.</p>

<p>Statutory New Trial — Following Former Decision or Writ of Error.</p> <p>Where, on a new trial to determine the title and right of possession of land, under a state statute giving a right to a new trial in such cases, the material facts, as disclosed by the evidence, are substantially the same as the facts on the former trial, and substantially as the facts before the circuit court of appeals on the review of such former trial, the case will be disposed of as indicated by the appellate court.</p>

<p>1. United States Mabshaus — Fees—Evidence—Memobanda.</p> <p>Entries and, memoranda made by a deceased United States marshal are admissible in'evidence in favor of his administratrix in an action by her against the United States to recover for services and disbursements of the intestate in his lifetime.</p> <p>2. Same — Evidence-Allowance by Coubt.</p> <p>The approval of a United States marshal’s account by a circuit court of the United States under Act Feb. 22, 1875, (18 St. p. 333,) is prima fade evidence of its correctness, and, in the absence of dear and unequivocal proof of mistake on the part of the court, is conclusive.</p> <p>8. Same — Attendance at “Heabings.”</p> <p>A hearing on the question of admission to bail, or on motion to adjourn, or on arraignment or commitment, constitutes a “hearing a.nd deciding,” for the attendance upon which a United States marshal is entitled to a per diem fee.</p> <p>4, Same.</p> <p>A United States marshal is not entitled to per diem compensation for attendance before the court where no certificate is filed showing that the court was open, and business transacted. Marvin v. U. S., 44 Fed. Rep. 405, followed.</p> <p>6. Same — Akbbsts—Expenses.</p> <p>A marshal is not entitled to expenses incurred in endeavoring to make an arrest, when he had no warrant, and could not have arrested the accused if found.</p> <p>6. Same.</p> <p>A marshal is entitled to expenses incurred in making an arrest, although such arrest was not made by the deputy sent for that purpose, but was made in consequence of information acquired in traveling about for that purpose, under the direction of the district attorney; and the marshal is not restricted to the statutory allowance of two dollars per day.</p> <p>7. Same.</p> <p>He is also entitled to the expenses of the deputy in thus traveling about under direction of the district attorney, it appearing that the arrest followed directly from information thus obtained.</p> <p>8. Same.</p> <p>Such officer is entitled to mileage in serving writs where it appears that the railroad route traveled was the nearest practicable. Fletcher v. U. S., 45 Fed. Eep. 213, followed.</p> <p>9. Same — Railroad Travel.</p> <p>Also to mileage for the distance proved to have been charged for by the railroad company, though the actual distance was a little less, and for the distance from the railway terminus to the destination.</p> <p>10. Same.</p> <p>Also charges for actual travel, where the services and returns were in the same place, and there is proof that such charges had always, theretofore been allowed and paid.</p> <p>11. Same — Expenses in Lieu of Mileage.</p> <p>Also for actual traveling expenses charged in lieu of mileage.</p> <p>12. Same.</p> <p>Also for travel for procuring witnesses from outside the district by direction of the district attorney.</p> <p>18. Same — Travel to Attend Court.</p> <p>The marshal is entitled to charges for travel to attend court on days which were consecutive. Harmon v. U. S., 43 Fed. Rep. 560, followed.</p> <p>14 Same — Conveying Prisoner.</p> <p>Also to expenses incurred in taking a prisoner from the jail in one city to the courthouse in another, such a ease not falling within Rev. St § 1030, providing that for bringing any prisoner into court without writ, and on the order of the court or district attorney, no fees shall be charged.</p> <p>15. Same.</p> <p>Also for mileage for taking a prisoner to and from the commissioner an.® jail, by virtue of warrant and mittimus under the Connecticut practice, as in such case Rev. St. • § 1030, has no application. Harmon v. U. S., 43 Fed. Rep. 560, followed.</p> <p>16. Same — Releases on Bail Bond.</p> <p>Also for releases on bail before the commissioner, where such release involves the taking of a bail bond.</p> <p>17. Same — Carriage Here.</p> <p>Also for the hire of carriages to transport prisoners, and serve process, where the services are of great value, and' the charges include only amounts allowed for travel or actual expenses.</p> <p>18. Same — Stationery.</p> <p>Also for stationery furnished by the marshal for the use of the court, proper vouchers for the cost of the same being duly produced.</p> <p>19. Same — Payments to Court Officers.</p> <p>Also for payments made by the marshal to court messengers, criers, and bailiffs in pursuance of statutory requirement.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of California.</p> <p>Action by Mary Alice Henshall against Charles Henderson, W. D. Holcom, and John Purcell for damages for false representations leading to an exchange of lands. Plaintiff having died pending the suit, John Henshall, special administrator of her estate, was substituted as plaintiff. Defendants moved to dismiss the action, on the ground that it had abated by the death of the original plaintiff, and for judgment on the ground that the complaint failed to state a cause of action. The motion was denied, and judgment was entered on verdict for plaintiff as against defendants Henderson and Holcom. Said defendants bring error.</p>

<p>In Error to tbe Circuit Court of tbe United States for tbe District of South Carolina.</p> <p>Action by E. F. Joyce against tbe'Charleston Ice Manufacturing Company for damages sustained because of defendant’s refusal to allow plaintiff to remove certain property from tbe premises of defendant. Verdict and judgment were rendered for plaintiff, and a motion for a new trial was denied. 50 Fed. Eep. 371. Defendant brings error.</p>

<p>1. Chinese — Exclusion-—Proceedings—Dub Process of Law.</p> <p>The provision of the Chinese exclusion act of May 5, 1892, for summary proceedings before a commissioner for the deportation of unauthorized persons, is not, by reason of its failure to allow a jury trial, open to the objection that it operates a denial of due process of law; and such proceedings do constitute due process of law, inasmuch as they are those customarily employed in cases of similar character.</p> <p>2. Same — Evidence—Burden of Proof.</p> <p>The provision of the exclusion act of May 5, 1892, that the person charged is presumed to be guilty without the production of any evidence against him, and must establish his innocence by affirmative evidence, is not repugnant to any provision of the federal constitution, nor does it violate any common-law rule of evidence; for the facts constituting a defense are peculiarly within the knowledge of the party charged, and the burden is naturally upon him.</p> <p>8. Same — Denial of Equal Protection of Laws.</p> <p>These acts are in no wise repugnant to the fourteenth amendment to the federal constitution, as denying the Chinese the equal protection of the laws; for that amendment is restrictive of the action of the several states, and has no reference to legislation by congress.</p> <p>1 Same — Nature of Penalty.</p> <p>The imprisonment provided for in the act of May 6, 1892, prior to deportation, is not a “punishment,” in the sense of the criminal law, but is merely a means of detention.</p> <p>S. Same — Habeas Corpus — Review—Prior Residence.</p> <p>On habeas corpus proceedings by Chinamen imprisoned by order of the commissioner, his findings of fact are not reviewable by the court; and hence it cannot be urged as ground for the writ that petitioners are exempt by reason of their residence here prior to the passage of the act of 1882.</p>

At Law. Indictment of Andrew J. Patrick, James Epps, and Morgan Petty for conspiracy and murder, under Rey. St. §§ 5508, 5509. Defendants demur to tbe indictment. Demurrers to indictments based on the same acts were heretofore sustained.

<p>Indictment of David and Gideon Bums for obstruction of navigable waters. On a plea in abatement, demurrer, and motion to quash.</p>

At Law. Appeal by the importers from a decision of tee board of general appraisers affirming tee decision of the collector of the port of New York to the cl asi float ion for customs duties of certain elastic webbing imported into that port November 18, 1890, and returned by the appraiser as “silk and cotton elastic webbing, silk chief value, 50⅞” and duty accordingly assessed thereon by the collector at that rate, under the provisions of paragraph 412 of Schedule L of the…

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>Proceeding by Marshall Field <& Co. to review a decision of the board of general appraisers. The circuit court reversed the decision, and ordered the collector to reliquidate the duties. 50 Fed. Bep. 908. The government appeals.</p>

<p>At Law. Action by George W. Kidd and others against Benjamin Flagler, as collector of customs, to recover damages for illegal detention of imported goods. Verdict for defendant. Motion for a new trial.</p> <p>Statement by OOXE, District Judge:</p> <p>In 1884 the plaintiffs were manufacturers of distilled spirits. Their distillery was at Des Moines, Iowa. Their principal ifiace of business was at New York city. The defendant was collector of customs at Suspension Bridge,. N. Y. The action was brought to recover damages of the defendant for detaining, for over two months, 65 puncheons of spirits belonging to the plaintiffs. In July, 1884, the plaintiffs withdrew this property from their bonded warehouse at Des Moines, for export to Canada, (section 3330, Rev. St.) without paying the internal revenue tax of 90 cents per gallon, intending to remove it to New York and pay the tax there. The route by which they proposed to send the properly was to Detroit and thence to New York, via Windsor, Can., and Suspension Bridge. The property arrived at Windsor on. the 12th of July, 1884. It was taken out of the cars, measured by the Canadian officials and placed in a warehouse under the charge of the Canadian customs officers, where it remained in bond -until August 16, 1884. No duty was paid to the Canadian government. On the 16th of August, it was shipped from Windsor, invoiced to the collector of the port of New York for the benefit of the plaintiffs. The cars in which it was placed for shipment were under the seal of the consul of the United States at Windsor. It reached Suspension Bridge on the 18th of August, 1884, where it was detained by the defendant, acting under instructions from the secretary of the treasury.</p> <p>The plaintiffs insist that they had a right to bring the property back to the United States upon paying a duty equal to the revenue tax upon it at Des Moines. They claimed this right under section 2500 of the Revised Statutes, which provides: “Upon the reimportation of articles once exported, of the growth, product, or manufacture of the United States, upon which no internal tax has been assessed or paid, or upon which such tax has been paid and refunded by allowance or drawback, there shall be.levied, collected, and paid a duty equal to the tax imposed by the internal revenue laws upon such articles.” The defendant insisted that the property had not been properly withdrawn from the warehouse at Des Moines and exported to Canada and that he had a right to detain it for that reason. The jury found that it was not the intention of the plaintiffs at the time the property was sent from Des Moines to Windsor to deal with it at Windsor as Canadian property. On the contrary, it was their purpose to pass it through Canada in order that they might pay the revenue tax at New York rather than at Des Moines. Some of these facts are admitted and others were established by the verdict of the jury. None of them can be questioned on a motion of this character, which proceeds upon the theory that the plaintiffs are entitled to recover non obstante veredicto.</p>

<p>1. Customs Duties — Window Glass — Bheakage on the Voyage.</p> <p>Window glass, which was in a sound condition when it was shipped, but has been broken on the voyage, so as to be useless except for remanu-faciure, is entitled to free entry, under paragraph 590 of the tariff act of October 1, 1890, for it is, for tariff purposes, different merchandise from that which was shipped, and not merely damaged merchandise of the same kind. Marriott v. Bruhe, 9 How. 619, followed.</p> <p>S. Same — Iíoaiíd of Aivkaisebs’ Decision — Appeal—Jubisdiotion.</p> <p>The collector classified certain window and oilier glass under Schedule B, (paragraph 112 of the act of October 1, 1890,) and the importer protested, claiming that on the voyage part of the glass was broken into pieces which could not be used without remanufacture, and was therefore exempt from duty, under paragraph 590 of the free list. Before the board of general appraisers the importer offered to prove the number of pounds of glass üms broken, but the board refused the offer, deciding that the claim was in legal effect one for reduction of duties on account of damages to part of the goods, and that such a claim was inadmissible, under the act of .Tune 10, 1890, § 23. The facte were undisputed, and the board found as a fact that part of the glass was broken on the voyage. Held, that the proceeding before the board was in the nature of a demurrer by the cob lector to the protest; that the board had authority to determine the question of law thus presented without admitting tjie evidence; and that, on an appeal from its decision, the circuit court had authority to review and reverse the same, notwithstanding the absence of evidence in the record to support the finding as to the broken glass.</p>

<p>In Equity. Bill by the balance & Grosjcan Manufacturing Company against the Habermann Manufacturing Company for infringement of a patent. The patent was heretofore sustained, infringement declared, and an injunction granted. Bee 53 Fed. Rep. 375, 380. The case is now heard on,a motion to stay the injunction pending an appeal to the circuit court of appeals, under section 7 of the judiciary act of March 3, 1891.</p>

<p>In Equity. Suit by John N. Briggs against tbe Central Ice Company to restrain tbe infringement of a patent.</p>

<p>1. PATENTS POR INVENTIONS — "VALIDITY—SeWTNG-MaCIIINE TREADLES.</p> <p>The second claim of letters patent- No. 128,460, issued July 2, 1872, to A. Brill, for an improvement in sewing-machine treadles, consisting of a combination with “a driving or fly wheel of adjustable bearings,” is void for want of invention, in view of the prior state of the art.</p> <p>3. Same — Appeal—Questions op Pact.</p> <p>The first claim of the patent covers a combination of a fly wheel having a short projection or axle at the center on one side, and on the other an arm attached to the wheel a short' distance from the center, with a crank returning to the center, and a short projection or axle at the end of the crank; the wheel being held in place by pointed screws passing respectively through one of the standards of the machine, and through a bracket attached to the under side of the table, the screws fitting in conical sockets in the axle. Held, that the claim' is not void upon its face, although all the elements are old, and that the question whether it produced a new and useful result was a question of fact to be determined by the jury; and their finding that the claim was valid was not reviewable on appeal, since it was supported by some legal evidence. Heald v. Rice, 104 U. S. 737; Lumber Co. v. Rodgers, 5 Sup. Ct. Rep. 501, 112 U. S. 659; and Pond du Lac Co. v. May, 11 Sup. Ct. Rep. 98, 137 U. S. 395, — distinguished.</p> <p>8. Same — Appeal—Infringement.</p> <p>The’question whether the second claim was infringed by a machine made under letters patent No. 224,710, issued February 17,1880, to ifiller & Diehl, assignors of the Singer Manufacturing Company, was also a question of fact for the jury, and their finding of infringement upon competent evidence was not reviewable on appeal.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>In Equity. Suit by the National Sheet-Metal Roofing Company against Henry Smeeton to restrain the alleged infringement of a patent. The bill was dismissed at the hearing. Complainant appeals.</p>

<p>Patents eoe Inventions—Novelty—Electric Rail—Connector.</p> <p>Letters patent No. 434,087, issued August 12, 1890, to Charles Leib, for an electric rail connector consisting of a short metallic wire with each end passing through a bolt or rivet, which is firmly inserted into a hole drilled into the rail, are void for want of novelty over the Gassett & Fisher patent of May, 1880, in which the connecting wire is coiled round the heads of the rivets, instead of passing through them, as well as the Wcstingliouse patent of July 31, 1883, and Hie Winter patent of April 14, 1885, in which the ends of the wires are directly inserted in holes in the rails. 48 Fed. Rep. 722, affirmed.</p>

In Equity. These were three suits brought by the Aerated Fuel Company against the Woodbury Glass Company, the Cox & Sons Company and others, and the Cohansey Glass Manufacturing Company, respectively, for infringement of a patent.

<p>1. Admibautv — PiYEADiira.</p> <p>'Die libelant is entitled to an admission or denial of each distinct and separate averment in his libel separately and distinctly, and an answer is insufficient which admits some of the averments of the libel, but concludes: "lii' denies the other allegations of the fourth article, as therein alleged, and refers to the allegations of the eighth article of the answer;” such eighth article being a narrative somewhat different from tho libelant’s.</p> <p>8. Same.</p> <p>An averment in the answer Jo a libel that the persons for whose benefit this action is prosecuted “had full notice and knowledge of and partiei-paied in iho prosecution” of a former action, does not sufficiently advise the libelant whether evidence of some specific written notice in addition to a general knowledge is to he introduced, but such defect may be cured by amendment.</p> <p>B. Same.</p> <p>A pleader who sets forth a detailed narrative of the movements of his own vessel cannot be required to add thereto averments as toother matters of detail upon which his adversary may wish to have specific averments, but. as to which it does not appear that he has knowledge sufficient to enable him to set them forth, nor that, he intends to rely upon them at tho trial.</p>

<p>In. Admiralty. Libel by Nelson W. Tabor and others against the schooner Cerro Gordo to enforce a lien for seamen’s wages.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Michigan.</p> <p>In Admiralty. Libel by James E. Pittman and others against the steam barge Samuel Marshall (Edward Smith and other's, claimants) for supplies. The district court dismissed the libel. 49 Fed. Eep. 754. Libelants appeal.</p>

<p>Appeal from the District Court of the United States for the Northern District of California.</p> <p>In Admiralty. Libel by A. M. Simpson and others, owners of the barkentine Portland, against the steamship State of California, for damages resulting from a collision. Cross libel by the Pacific Coast Steamship Company, owner of the State of California, against the Portland, for damages sustained in the same collision. The libel against the steamship was dismissed in the district court, and at the same time an interlocutory decree was entered against the Portland on tbc cross libel, and the cause was referred to a master to ascertain the damages. 46 Fed. Rep. 877. An appeal was then taken from the decree dismissing the libel against tbe steamship, which decree was affirmed by the circuit court. An appeal was thereupon taken to the circuit court of appeals. The case against the Portland remained in abeyance until the decree of the .circuit court, and thereafter the order of reference to ascertain damages was carried out, and a final decree entered against the Portland. From this decree an appeal was taken by her owners direct to the circuit court of appeals. The causes were heard together in the circuit court of appeals, which held that both vessels were in fault, and that the case was one for divided damages, and entered the following decree:</p> <p>“The decree of this court will be that the decrees in the cases of the Portland and the State of California are both reversed, and that they both be remanded to the district court, and there consolidated and tried as one case, upon the question of the amount of damage sustained by the Portland and State of California, respectively, by reason of the collision; and that, if either is shown to have sustained more damage than the other, the lesser sum, with the costs of libelant In such case, shall be deducted from the greater sum, with costs, and the party sustaining the greater loss shall have a decree for the one half of the remainder.” 49 Fed. Rep. 172.</p> <p>The causes were accordingly remanded, and were again heard in the district court, which entered a decree in favor of the owners of the California in the sum of |2,371.69. From this decree the claimants of the Portland now appeal.</p>

<p>In Admiralty. Libel by James Campbell against tbe steam tug Young America for collision.</p>

<p>1. Collision — Right of Wat — Change op Course-Lookout.</p> <p>If a schooner, having the right of way, held her course, it is all an approaching steamer had. a right to require, and whether she had a proper lookout or not is immaterial. The Fannie, 11 Wall. 243, followed.</p> <p>2. Same — Weight of Evidence.</p> <p>The rule is that the testimony of officers and witnesses as to what was actually done on hoard their own vessel is entitled to greater weight than that of witnesses on other boats, who judge or form opinions merely from ■ observation. The Hope, 4 Fed. Rep. 89, followed.</p> <p>3. Same — Steam and Sail — Duty to Stop and Reverse.</p> <p>Where a steamer and a schooner are half a mile apart, and the master of the steamer sees there is danger of collision, it is his duty to slacken her speed, or stop and reverse, if necessary.</p> <p>4. Same — Error in Extremis.</p> <p>Where a vessel, by her own negligence, or the breach of a statutory rule, places another in great peril, the latter will not be hold guilty of negligence because at the last minute she did something that contributed to Hie collision, or omitted to do something that might have avoided it.</p>

<p>Appeal from tbe Circuit Court of the United States for the Eastern District of Missouri.</p> <p>A motion was made to dismiss this appeal on the ground, among others, that the appeal was not taken within six months after the entry of the decree sought to be reviewed. The decree In the court below was rendered May 27, 1892. November 27, 1892, was Sunday. The appeal from the decree was allowed, and the bond on appeal approved, November 28,1892.</p>

<p>1. Appeal — Jurisdiction—Citation.</p> <p>Where an appeal is allowed after expiration of the term at which the decree appealed from is rendered, a failure to have a citation issued, returnable at the samo term as the appeal, causes the appellate court to lose jurisdiction.</p> <p>2. Same — Practice—Enlarging Time to File Record.</p> <p>Under rule 16 of the circuit court of appeals for the seventh circuit, (47 Fed. Rep. viii.,) providing that the judge who signed a citation on appeal, or any judge of the circuit court of appeals, may enlarge the time for filing the record, such an order made by a district judge who is not a member of the circuit court of appeals, and who did not sign the citation, is void.</p> <p>3. Same.</p> <p>An order extending the time for filing the record on appeal, made after the timo has expired, is ineffective.</p>

<p>Error to tbe Circuit Court of the United States for the Northern District of Illinois.</p> <p>Assumpsit by N. K. Fairbank & Co., a corporation, against the Cincinnati, New Orleans & Texas Pacific Railway Company. The case was dismissed on defendant’s motion., Plaintiff brings error.</p>

Statement by SANBORN, Circuit Judge: This is a writ of error to reverse a judgment sustaining a demurrer to a complaint and dismissing an action brought in the United States court in the Indian Territory by the Creole tribe of Indians and William F. Crab-tree, as their national tax collector, plaintiffs in error, against William A. Madden, the defendant in error, to collect a tax imposed on him by that tribe.

<p>In Error to the United States Court in the Indian Territory.</p> <p>Action by William F. Crabtree, national tax collector of the Creek nation of Indians, and said nation, against P. J. Byrne and R. J. Gentry, executors, substituted for A. A. Engart, deceased, to recover the amount of a tax imposed by the laws of the nation. Judgment for defendants sustaining a de.murrer to the comnlaint and dismissing the action. Affirmed.</p>

<p>In Equity. Suit by Chester K. Remer against Duncan McKay and others. A demurrer to the bill was heretofore overruled. 35 Fed. Rep. 86.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Missouri.</p> <p>Statement by SHIRAS, District Judge:</p> <p>The proceedings in this case were brought in the United States circuit court for the eastern district of Missouri, for the purpose of settling the title to certain realty forming part of block 144, in the city of St. Loins; the complainants, John C. Chaffin and Edwin O. Childs, trustees under the" will of Edwin Chaffin, and Caroline A. Chaffin, claiming that the realty, in right and equity, belonged to Edwin Chaffin in his lifetime, and that whatever apparent title thereto was held by Leon L. Hull, William Clark, or the widow and heirs of Samuel Hermann, deceased, was in fact held by them in trust for complainants, who represented the right and interest of Edwin Chaffin. Upon the final hearing of the case in the circuit court, it was decreed that all the right, title, and interest acquired by Leon L. Hull, William Clark, or Samuel Hermann to the realty in the bill described was obtained and held by them in trust for the complainants, John C. Chaffin, and Edwin O. Childs, testamentary trustees under the will of Edwin Chaffin, deceased, and that, upon reimbursing the defendants for all sums of money paid by them in procuring the execution of the conveyances to them, the complainants should be entitled to a decree vesting the title held by said defendants ip. complainants; it being further held 'that the defendants should account for all rents and profits by them received, and be credited for all expenditures for taxes, insur-, anee, repairs, and improvements in connection with the property. An accounting was had before a master, who found that there was a balance due to the defendants amounting to $738.55; and, this sum being by complainants paid into court, a final decree was rendered, in effect, vesting the title of the realty in the complainant trustees, to reverse which the defendants took an appeal to this court.</p>

In Equity. Suit by Michael B. Leavitt against the Windsor Land & Investment Company, William H. Bush, Frank C. Young, and Edward W. Rollins, for a mandatory injunction restoring complainant to the possession of a certain theater building from which he had been ousted, and for other relief. The circuit court dismissed the bill. Complainant appeals.

<p>In. Equity. Suit by tlie United States against George Hendy to cancel a listing of certain lands to the state of California, and to estop respondent to assert title thereto. Heard on demurrer to the bin.</p>

<p>1. Execution — DISTRIBUTION or Proceeds — Redelivery Bond.</p> <p>M. and R. were the joint assignees of a judgment. The judgment had been collected by execution, and the money paid to the clerk of the court, to remain until certain liens, claimed by other parties on the money, were finally decided. Pending the litigation concerning the liens M. gave a restitution bond, conditioned to return the money in case he was so ordered by the court, and the clerk paid the money to him,' to be held in trust for the bondsmen until a decision was rendered. Held, that R. was not entitled, during the time the restitution bond remained in force, to recover from M. his share of the money.</p> <p>8. Pleading and Proof — Variance.</p> <p>In an action to recover damages for defendant’s conduct in advising and influencing the clerk of the court not to pay money claimed to be due plaintiff, and for damages for negligence in failing to collect a judgment, it is not competent, without further pleading and notice, to recover as for money had and received, hy showing that defendant, since the action was begun, collected the judgment.</p> <p>S. PRINCIPAL AND AGENT— RIGHTS INTER Se.</p> <p>M. was agent of II. to collect certain notes. He traded the notes to the makers for a stock of goods, being all their property. Subsequently other creditors of the makers attached, and sold the goods, the proceeds being paid into court. At the sale ⅞1. purchased and paid for part of the goods, and operated a store therewith, making other small purchases to replenish the stock. Shortly afterwards the stock was burned without insurance. In the mean time M., as agent of It., ha,d drawn from the clerk part of the proceeds of the sale, and now, as against his principal, claims a lien thereon for the amount he paid for the goods, and the expenses of the store. Held, that if he purchased the goods for himself he was not entitled to any lien; but if he purchased for his principal, to prevent a sacrifice of the property, and to collect Id’s claim, and operated the store for that purpose, and R. acquiesced therein, then M. was entitled to retain the purchase price and expenses.</p>

At Law. Action by Allelia R. Morgan, by ber next friend, against the city of Des Moines, to recover damages for injuries sustained through the alleged negligence of defendant in not keeping its streets in repair. Defendant demurs to the petition.

<p>1. Mines and Minino — Width oe Claim — Validity oe Patent.</p> <p>Under Rev. St. § 2320, a patent cannot be issued for a mining claim exceeding 300 feet in. width, although the original location was wider, and was made under the law of July 26, 1866, by which the width of claims was regulated according to the custom of miners; and, where a patent is issued for the full width of such claim, it is void as to the excess, and Rev. St. § 2328, cannot he construed to preservo a right to the issuance of a patent covering the full width of the original location. 53 Fed. Rep. 838, affirmed.</p> <p>8. Landlord and Tenant — Estoppel to Deny Title.</p> <p>. In an action of ejectmeut by the patentee of a mining claim, where it appears from a stipulation agreed upon by both parties that certain defendants, after the date of the patent, paid a.small sum as rent for the privilege of occupying the premises, and it does not appeal' under what circumstances, nor for what premises, nor for what time, such payment was made, the relation of landlord and tenant is not established so as to estop defendants from denying the patentee’s title. 53 Fed. Rep. 333, affirmed.</p> <p>3. Same.</p> <p>An understanding that certain defendants who entered after the date of the patent without the patentee’s permission did so without objection by the patentee, provided its use and enjoyment of the premises were not interfered with, is not sufficient to establish the relationship of landlord and tenant, so as to* estop defendants from denying the patentee’s title. S3 Fed. Rep. 333, affirmed.</p> <p>4 Same — -Appeal.</p> <p>Where there are two classes of defendants, one of whom is not estopped to deny the patentee’s title, and the classes are not distinguished, nor the defendants composing each class identified, the record does not enable the appellate court to apply a remedy as to those defendants who are not estopped, and the judgment below in favor of both classes should therefore be affirmed as to all.</p>

<p>At Law. Action by George E. Pinson against the Atchison, Topeka & Santa Ee Railroad Company. Motion by plaintiff to retas costs.</p>

<p>' Street Railways — Injuries to Passenger — Contributory Negligence.</p> <p>It is not negligence, per se, for a passenger in a street-railway car operated by electricity according to the “trolley” system to rest her arm upon tbd sill of an open window.</p>

<p>1. Trial — Motion to Instruct for Defendant — Waiver op Objections.</p> <p>Where a defendant, at the close of. plaintiff’s testimony, moves for an instruction to the jury to find in his favor, and the court denies the motion, the subsequent introduction of testimony by defendant waives all objections which he might have made to the ruling. Railroad Co. v. Hawthorne, 12 Sup. Ct. Rep. 591, 144 U. S. 202, followed.</p> <p>55. Carriers — Ejectment op Passengers by Constable.</p> <p>A passenger refused to sign his railway ticket, thus violating its provisions, and rendering it void, and drew a pistol to resist an effort on the part of the-conductor to eject him. He was afterwards arrested, on complaint of the railway company, and removed from the train, by a constable, who after such removal kept him in irons for 20 minutes before procuring a warrant. The passenger was acquitted in a criminal prosecution wherein the railway company’s agent swore to the complaint. In a suit by the passenger against the company the constable testified that he acted merely as a peace officer, and on information that a pistol had been drawn. Held, that an instracton that, if the company caused the arrest merely to eject the passenger from the train, the constable was its special agent for that purpose, for whose unnecessary violence the company would be responsible, was erroneous, since it failed to discriminate betwen the acts of the officer while removing the passenger,' and afterwards; and where such passenger, having suffered no great bodily harm, recovers $44,000 for his injuries, the verdict, although reduced by the trial judge to $15,000, should be set aside, as influenced by the errone-neous instruction, and a new trial ordered.</p> <p>8. New Trial — Verdict agatnst Evidence.</p> <p>Where the evidence offered for the party for whom a verdict is rendered, conceding to it the greatest probative force to which, according to tlie law ol evidence, it is fairly entitled, is insufficient to support the verdict, the court should set aside the verdict, and grant a new trial. Pleasants v. Fant, 22 Wall. 120, followed.</p> <p>4. Exceptions — Bill op — When and How Taken.</p> <p>Where a party’s exceptions are reduced to form, and filed with the clerk at the trial, before the jury retires, and a formal bill of exceptions, tiled within the time granted by the court, is afterwards settled and approved by the court as containing a correct statement of the case, the writ of error should not he dismissed because of a failure to comply with the rules of the trial court, for such court may suspend its rules, or except a particular case from them, to subserve the ends of justice. U. S. v. Breitling, 20 How. 252, followed.</p>

<p>Ill Error to the United States Court in the Indian Territory.</p> <p>This action was commenced in the United States court in the Indian Territory, third division, by W. H. Johnson, the defendant in error, against the Gulf, Colorado & Santa Ee Railway Company, plaintiff in error, to recover the value of a yearling alleged to have been killed by the negligent operation of the defendant’s trains, and also to recover the value of two tons of hay and the grass growing* on eighty acres of pasture land alleged to have, been burned, by fire negligently permitted to escape from the defendant’s locomotives. The answer was a general denial. There was a trial and verdict, and judgment for the plaintiff, and the defendant sued out this writ of error.</p>

<p>1. Katlkoad Companies — Negligence—Killing Stock.</p> <p>On trial of an action against a railway company for killing a mare and filly, the evidence showed that where the filly was struck the track was straight and level, and one standing thereon at that point could see an animal on or near the track for over half a mile in either direction, and hoof-prinfs showed that the íilly liad run on the track ahead of the engine 200 yards or more before she was struck. Held, that a verdict, for plaintiff would not be disturbed.</p> <p>8. Sames— Burden of Proof.</p> <p>Tnder the circumstances, the burden was on defendant to show any such special circumstances connected with the operation of the train as would have rendered it unsafe and impracticable to stop it or slacken its speed within the distance of 200 yards.</p> <p>8. Same — Evidence—Failure to Produce Witness.</p> <p>Failure to produce the engineer as a witness to rebut the inferences raised by the circumstantial evidence would justify the jury in assuming that his evidence, instead of rebutting such inferences, would support them.</p> <p>4. Same — Duty of Engineer.</p> <p>It is the duty of the engineer oí a railway train to keen a lookout for stock upon the track.</p> <p>5, Appeal — .Review—Weight of Evidence.</p> <p>In common-law actions the circuit court of appeals will not review the facts, if there is evidence direct or circumstantial fairly tending to support the verdict.</p>

<p>In Error to the United States Court in the Indian Territory.</p>

<p>In Error to the United States Court in the Indian Territory.</p> <p>Action by William M. Matthews against the Gulf, Colorado & Santa Fa Railway Company for killing stock. Judgment for plaintiff. Defendant brings error.</p>

<p>In Error to the United States Court in the Indian Territory.</p> <p>Action by James R. Conley against the Gulf, Colorado & Santa Fe Railway Company for killing stock. Judgment for plaintiff. Defendant brings error.</p>

Action by David R. Francis against Howard county, Tex., to recover upon coupons of county bonds. Judgment in part for plaintiff, and in part for defendant. See 50 Fed. Rep. 44, where a fall statement of the facts and the opinion of the court will he found. Plaintiff brings error.

<p>Criminal Law. On demurrer to indictment for perjury in final homestead proof.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of California.</p> <p>Habeas corpus proceeding by Mock Chew, a Chinese person who was refused permission to land in the United States. The circuit court discharged the petitioner, and permitted him to land. The United States appeals.</p>

<p>Customs Duties — Classification—Dyes--Primuline Buff.</p> <p>Primuline buff, a compound of a preparation from quercitron or black oak bark, 80 per cent., and alizarine, a preparation from coal tar, 20 per cent., is dutiable under the tariff act of October 1, 1890, Schedule A, par. 26, (26 St. p. 667,) imposing a duty of seven eighths of a cent per pound on dyewood extracts, and not under paragraph IS, imposing- a duty of 35 per cent, ad valorem on coal-tar dyes.</p>

<p>In Equity. Suit by the National Harrow Company against James Hanby for the infringement of a patent.</p>

In Equity. Suit by George H. Wilson against the Ansonia Brass & Copper Company for infringement of a patent. There was a decree in favor of complainant, sustaining his patent, and declaring defendant’s device an infringement, (48 Fed. Rep. G81,) from which defendant appeals.

<p>Patents for Inventions — Infringement—Bicycle Saddles.</p> <p>Letters patent No. 331,001, granted November 24, 1885, to Albert H. Overman, for a bicycle saddle, were for a flexible suspension saddle, supported by a spring at its rear end, to which, as well as to the forward support, the saddle is detachably connected, so that “it may be removed and attached at pleasure,” in order that “the saddle may be protected from rain and weather, and the bicycle dismantled against riding, with the least inconvenience.” Held that, in view of the prior state of the art, the capacity of the saddle to be removed with ease and convenience is an essential element of the combination; and hence the patent is not infringed by a somewhat similar device, in which-the saddle is removable only by the use of a degree of force that does violence to, rather than exercises a normal function of, the machine.</p>

<p>Appeal from tbe Circuit Court of tbe United States for tbe District of Connecticut.</p> <p>In Equity. Suit by Isaac F. Williams against tbe Goodyear Metallic Rubber Shoe Company to restrain tbe infringement of a patent. Tbe circuit court dismissed tbe bill. 49 Fed. Rep. 245. Complainant appeals.</p>

<p>In Equity. Suit by the St. Paul Plow Works against Deere & Co. for infringement of a patent</p>

<p>Patents foe Inventions — Infringement—Injunction—Procedure.</p> <p>By a preliminary injunction tbe defendants were restrained, pendente lite, from infringing tbe second claim of the patent in suit, and specifically from manufacturing incandescent electric lamps like “Exhibits 1, 2, and 3,” which the courts of another circuit had held to infringe the claim. Held, that the court would not, at the instance of the defendants, against the objection of the plaintiff, undertake in a summary way to pass- upon the question whether a new structurally differing lamp, devised by the defendants, and by them put on the market since the injunction, is an infringement, but that,, unless the plaintiff moved for an attachment for a violation of the injunction, the decision of the question must await the final hearing.</p>

<p>1. Patents for Inventions — Construction of Claims — Infringement—Coal-Washing Machines.</p> <p>If claim 3 of reissue patent No. 9,011, granted to Sebastian Stutz, for improvements in coal-washing machines, namely, “the chambers, A, A, having sieves, s, s, inclined ways, C, C, leading into the central chamber, L, and the valve passages, e, e, as set forth,” can be sustained at all, it must be narrowly construed, and therefore a coal-receiving chamber located in front of the washer boxes and six feet distant therefrom is not the “central chamber” of the claim.</p> <p>3. Same — Anticipation.</p> <p>The defense of anticipation to claims 2 and 3 of patent No. 194,059, for improvements in coal washers, granted to same patentee, sustained.</p> <p>8. Same.</p> <p>There is no invention in changing the location of a sulphur outlet or the location of a drying screen in a coal-washing machine, where there is no change of function or increased efficiency.</p>

<p>Pathnts bob Intesttohs — Novelty—OrirRxs.</p> <p>Letters patent No. 378,Ml, issued February 21, 1888, and Nos. 418,355 and 518,356, issued December 31, 1889, to Samuel D. Palmer, for devices for seeming the lid of end over end revolving barrel chums, consisting of the combina ton, with a chum having bails, of a removable head, and a cam to engage the free portion of the hails, and means for operating the cam, are void for want of novelty, having been anticipated by letters patent issued July 5, 1881, to William Dobson.</p>

<p>In Equity. Suit by Lewis W. Holloway against Thomas Dow and William P. Brown for infringement of a patent.</p>

<p>In Equity. Suit by the Lalance & Grosjean Manufacturing Company against tbe Haberman Manufacturing Company for the infringement of a patent.</p>

<p>1. PATBHTS i’OR IKVENTTOHS — AKTICtPATION--ARMAT'amaS.</p> <p>In letters patent No. 393,266, granted to Andrew L. Hiker November 1, 1888, claim 1 was for “an armature for motors or dynamos, comprising a series oí flat rings having outwardly projecting teeth, composed each of two like parts, adjacent rings breaking joints, and bolts or rivets passhig through the overlapping ends of adjacent half rings, so that by withdrawing said bolts or rivets the armature can bo divided diametrically into two halves.” Held, that the teeth with spaces for the coils of wire between are important, and hence this claim is not anticipated. by the British patent No 1,736, of April 6, 1883, to Marcel Duprez, which has no such teeth.</p> <p>2. Same.</p> <p>Nor is it anticipated by the British patent No. 3,570, of February 19, 1884, granted to John H. Greenhill, which shows projecting teeth providing spaces for coils of wire between, but not an armature which can be wound in parts, as that of Hiker’s patent can bo.</p> <p>8. Samis.</p> <p>Neither of these British patents shows the series of flat, stamped-out rings, each composed of two like halves, joined at their ends, having teeth with spaces between for coils, and rivet holes opposite alternate teeth, so placed as to be reversible alternately and break joint, which is the construction covered by the second claim of Hiker’s patent; and hence that claim is not anticipated.</p> <p>Í Same — Infrttígemhnt.</p> <p>Butting the rivet holes through alternate teeth as they broaden outward, instead of through the bodies of the rings opposite the teeth, constitutes an infringement of Hiker’s parent when such rivet holes aro spaced, and are out of the way of the coils, the same as when they are in the body of the rings.</p>

<p>Í Patents sob Inventions — Combination—Oil Cars.</p> <p>Letters patent No. 216,503, issued June 17, 1879, to M. Campbell Browu, for an improvement in cars, consisting in a division of the car into two or more parts, some of which shall bo constructed as tanks for carrying oil, while others are fitted for ordinary merchandise, the object being to carry such merchandise on the return trip, and thus obviate the necessity of hauling empty oil cars for long distances, are void for want of patentable combination. 48 Fed. Rep. 109, affirmed.</p> <p>8. Same — Suit for Infringement — Parties.</p> <p>In a suit against a railroad company for infringing a patent upon oil cars, defendant disclaimed ownership of the alleged infringing cars, and of any interest in the patent, and averred that it simply transported the cars under the obligations of a common carrier. Held, that the true owner was entitled to become a party, and. defend the suit, upon filing a petition for leave to intervene, setting up its rights.</p>

<p>Patents for Inventions — Infringement—Accounting—Costs.</p> <p>Where defendants’ infringement of the patent sued on is plain, but they have denied the infringement until after the suit is brought, embodying a denial of infringement and of the validity of complainants’ patent in their answer, they cannot defeat complainants’ right to an accounting by offering then to pay royalty on a certain number of the patented articles, which they admit that they sold, and the costs of suit</p>

<p>GhartbR Party — Lien ok Carso — Bill of Lading Stating Freight — Liability of Cargo fob Unpaid Charter Money.</p> <p>Tlio provisions of a charter party gave the shipowner a lien “on all cargoes and all subfreights for any amounts due under this charter.” The charterer subeharterod the vessel by a charter party of similar terms, and claimant shipped certain cargo, for which bills of lading, fixing tfce freight due, were given by the purser of the subcharterer. Claimant haying paid to the subcharterer the freight due on the cargo as per bills of of lading, after notice that the shipowner claimed a lien thereon, held, that the shipowner could enforce a lien upon the cargo for the freight stated! in the bills of lading, but for no more.</p>

<p>1. Shipping—Charter Party—“All Convenient Speed. ”</p> <p>The provision in a charter party that the vessel chartered shall proceed to port of loading “with all convenient speed” is equivalent to a contract that she shall proceed without unnecessary delay, and implies an agreement that it shall be without unreasonable delay, and these are conditions precedent.</p> <p>2. Same—“At Port or Sailed.”</p> <p>The provision in a charter party that the vessel to be chartered is “at Santos, or sailed,” is a contract that she will soon sail, or has sailed, therefrom.</p> <p>8. Same—Reasonable Diligence.</p> <p>One of the conditions implied in a charter party is that the vessel will commence the voyage with reasonable diligence, and this is violated by waiting over four months to carry out a previous contract before beginning the new one.</p> <p>4. Agent—Power to Waive Conditions.</p> <p>An agent to load cargoes has not, in general, power to waive forfeiture of charter party, so as to bind his nonresident principal</p> <p>5. Shipping—Charter Party—Waiver of Forfeiture.</p> <p>The advancement by an agent of a small sum, without commissions, to a delayed vessel, is not a waiver of forfeiture of charter party by delayed arrival, when accompanied by a declaration that he did not lmow what his principal, the charterer, would do about the delay.</p>

<p>In Admiralty. Libel in rem for wages, and damages for alleged cruelty.</p>

<p>Appeal from the District Court of the United States for the Northern District of California.</p> <p>In Admiralty. Libel by the S. II. Harmon Lumber Company and others, owners' of the schooner Sailor Boy, against the steam tug Warrior, (the Wilmington Transportation Company, claimant,) for damages to the schooner, caused by stranding. Decree for libelee. Libelants appeal.</p>

<p>In Admiralty. Libel for seamen’s wages.</p>

<p>In Admiralty. Libel by the Howard Towing Association against the barge J. E. Potts for salvage.</p>

<p>1. Salvage — Award—Right of Charterer, to Share.</p> <p>A steamer was chartered to carry a cargo to a certain port. The charter party provided that the steamer should “have liberty to tow and to be towed, and io assist vessels in all situations;” and the bill of lading provided that she should “have liberty to tow and assist vessels in distress, and to deviate for the purpose of saving life or property.” Tire master and crew were in full control and charge of the steamer during the whole voyage, subject to no orders from the charterer, and there was no supercargo aboard. During the voyage she rendered salvage services to another vessel, and was thereby delayed for several days. Held, that the charterer was not entitled to any damages for the delay occasioned by the services rendered. The Persian Alonarch, 23 Fed. Rep. 820, followed.</p> <p>2. Same.</p> <p>Alere inert cargo is not entitled to share in a salvage award, solely because of the risk to which it was subjected. The Blaireau, 2 Cranch, 240, distinguished.</p>

<p>Collision — Steamer with Barge at Anchor — Foa—Excessive Speed.</p> <p>A coal barge was anchored for several days in the west side of the channel of the Elizabeth river, Virginia, at a place designated by the harbor master, and customarily used as an anchorage for many years. The channel was 450 yards wide for 18-feet water and 600 yards for 12-feet water, and there was at least 200 yards of sea room east of the barge. During a dense fog the barge was struck by a steamer making a regular run at about her usual speed of 15 miles per horn-. The officers of the steamer were aware of the position of the barge, and were on the lookout for her, and those on the barge, on hearing the steamer’s approach, gave frequent signals by bell and horn. The steamer was out of her usual course, and out of the part of the channel generally used by passing vessels. Held, that the steamer was in fault for maintaining excessive speed in a fog, thus violating Act Aug. 19, 1890, c. 802, art. 16, § 1.</p>

Proceeding by the Hudson River Railroad Sc Terminal Company against James Day to condemn certain land. Day appealed to the circuit court of Bergen county, H. J., and removed the appeal to this court.

In Equity. Bill by the Texas & Pacific Railway Company to restrain R. B. Kuteman from prosecuting certain suits in a state court. A demurrer to tbe bill was sustained, and the bill dismissed. Complainant appeals.

<p>Federal Courts — Jurisdiction — Injunction against Officer of State Court.</p> <p>The prohibition of injunctions against the state courts (Rev. St. § 720) extends to all cases over which such courts first got jurisdiction, and applies to the officers and parties in the courts as well as to the courts themselves. Therefore, a federal court has no power, on the complaint of a legatee and an executor under a will probated in one state, to enjoin an administrator appointed in another state from distributing the funds under his control to the heirs at law.</p>

<p>In Equity. Petition by H. M. Comer, receiver of tbe property of the Central Railroad & Banking Company of Georgia, for an order authorizing the payment of certain expenses.</p>

In Equity. Bill by Judah Hart against the board of levee commissioners for the parish of Orleans to enjoin them from constructing a levee on the complainant’s land without compensation.

<p>In Equity. Suit by Horatio P. Seymour against. George W. Hen-dee, receiver, and Bradley B. Smalley.</p>

In equity. Bill by Susan B. Sowles, in her own right, and as as-signee of Jennie Bellows and Hiram Bellows, against the First National Bank of St. Albans, Chester W. Witters, as receiver of the bank, Edward A. Sowles, and Margaret B. Sowles, to have the avails of certain specific personal property transferred by Edward A. Sowles, executor of Susan B. Bellows, in his individual capacity, to such bank, applied to the payment of unpaid legacies.

In Equity. MU by St. Luke7s Church against Chester W. Witters, as receiver of the First National Bank of St. Albans, and others, to reach assets alleged to be a portion of the estate of Susan B. Bellows, and have the same applied to a trust fund created by the will.

<p>Mortgages — Foreclosure—Extinguishment.</p> <p>An executor holding two mortgages, with condition broken, on Vermont lands, took another mortgage of the saíne and other lands, individually, upon an agreement that the original mortgages should remain in force until the new mortgage was paid. Subsequently he foreclosed the last mortgage, and, after expiration of the time of redemption, took possession. Held, that this operated as a purchase of the land in satisfaction of the debt, and extinguished the original mortgages.</p>

<p>In Equity. Bill by Thomas C. Platt against the Philadelphia <& Reading Railroad Company and others for the appointment of an ancillary receiver.</p>

<p>L Railroad Companies — Stock—Payment in Property — Overvaluation.</p> <p>Code Ala. 1876, § 1824, requires subscriptions to railroad stock, which are payable in labor or property, to be taken at their money value, which must lie stated in the subscription list. A railroad company adopted a resolution to soli all its property to another company for $750,000, one half in stock and one half in bonds of the purchaser, and subsequently entered a subscription for $375,000 of stock, “to be paid for in the railroad property” of the seller, “of the value of the said sum of $375,000.” Eeld, that the subscription was to be read in connection witb tbe resolution, and its language was not conclusive that the value of the entire property was not over $375,000, so as to render void the issue of $375,000 in bonds under the constitutional provision forbidding overcapitalization.</p> <p>3. Same — Bonds.</p> <p>Under Const. Ala. art 14, § 6, forbidding corporations to issue stock or bonds except for money, labor, or property actually received, and declaring all fictitious increase of stock or indebtedness void, and Code Ala. 1876, § 1824, requiring that all subscriptions to the stock of railroad companies shah be paid in money, labor, or property at their money value, railroad property sold by one company to another and paid for by an issue of stock and bonds may be valued according to its net earning power, and the cost of building it de novo, and it is immaterial that the seller originally acquired it for much less than its actual value.- 52 Fed. Rep. 531, affirmed.</p> <p>8. Corporations — -Capital Stock — Rig-hts of Creditors.</p> <p>Although unpaid subscriptions to the capital stock of an insolvent corporation constitute a trust fund for the payment of its debts, yet where the corporation law of a state allows subscriptions to be.paid in property other than money, such payment in good faith at an honest valuation puts an end to the trust. A gross overvaluation of the property thus received would, however, be strong evidence of fraud in an action to enforce the personal liability of the stockholder.</p>

<p>In Equity. Suit by tbe Putnam Savings Bank against Thomas P. Beal, receiver of the Maverick National Bank. On demurrer to petition.</p>

<p>1. Life Insurance — Policy—Foreign Companies — What Law Governs — Application.</p> <p>Where an application for insurance is made in one state, by a resident and citizen thereof, through agents located therein, to an insurance company of another state, the policy, though actually issued in such other state, to take effect by its terms upon payment of first premium, and the policy is delivered and premium paid in the state where the application is made, the law of that state governs the interpretation and force of the contract</p> <p>2. Same.</p> <p>An insurance company undertaking to do business in a state other than that of its home and policy issuing office is subject, with reference to such business, to the terms and conditions by the laws of such state imposed on such business.</p> <p>3. Same.</p> <p>An insurance company doing business in a state other than that of its home office will not be permitted to withdraw the business done in such state from the obligatory force of the. statutes of that state, by the insertion, in its forms of application or policy, of a clause expressly providing that the law of the state of its home office shall govern its contracts of insurance.</p> <p>i. Same — -Cancellation of Policy — Estoppel.</p> <p>Where an insurance company has accepted the premiums, and the insured has relied on the indemnity contract provided in the policy, the insurance company is as much estopped to cancel the policy after the insured has become in such a physical condition that he cannot obtain desirable insurance upon his life in any reputable company as it would be estopped to avoid the policy after the insured’s death.</p>

<p>In Equity. BUI by the Central Trust Company of New York, against the Chicago, Kansas & Tezas Bailway Company to foreclose a mortgage. The Holton-Warren Lumber Company intervened, and claimed a mechanic’s lien. Heard on exceptions to the master’s report.</p>

<p>1. Constitutional Law — Jurisdiction of United States oyer Foras, Etc., —Lands Ceded by States.</p> <p>The clause in the federal constitution (article 1, § 8, el. 17) giving the United States exclusive jurisdiction over all places purchased by the consent of the legislature of the state in which the same shall be for the erection of forts, arsenals, etc., has only the moaning of an acquisition of land by actual purchase accompanied by a cession of jurisdiction by the state; and where land is acquired by the United States directly from the state as owner by an act of cession, (as in the case of Fortress Monroe,) the constitutional provision does not apply, and the. United States holds the land only by the tenure prescribed in the act of cession. Railroad Oo. v. Lowe, 5 Sup. Ot. Rep. 995, 114 U. S. 525, and Railroad Oo. v. McGlinn, 5 Sup. Ot Rep. 1005, 114 U. S. 542, followed.</p> <p>2. Same — Fortress Monroe — Virginia Laws in Force.</p> <p>The general laws of Virginia, other than criminal, which are not in conflict with those of the United States relating to forts, and which do not interfere with the military control, discipline, and use by the United States of Portress Monroe as a military post, are in force at Old Point Comfort, and are especially in force in those parts and places at Old Point Comfort which have been appropriated to other than &e military purposes of the United States.</p> <p>8. Same — Mechanic’s Lien Laws.</p> <p>Certain mortgages were given for the purpose of raising money to construct the Chamberlin Hotel at Old Point Comfort, and were duly recorded according to law in the elerk’s office of Elizabeth. City county court. Certain Uens of mechanics and material men for work and labor performed on sucb hotel were also filed according to law. Eeld, that Code Va. 1887, § 2483, giving mechanics’ liens priority over mortgages, applied in this case.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Mississippi.</p> <p>In Equity. Petition by W. EL Wooten, receiver, asking the protection of the court against T. O. King and Leo Lesser and others as to certain property seized and sold by them for state taxes. A decree was entered finding respondents guilty of contempt, and enjoining further interference with the property. Respondents appeal.</p> <p>W. H. Wooten was appointed receiver of a certain sawmill and appurtenances situated in Tunica county, Miss., in a suit styled Wooten & Tarrant vs. Frank Ingram Oo. and others, pending in the United States circuit court for the western division of the northern district of Mississippi. While the receiver was in possession of this property by his agent it was levied upon and sold for taxes by T. O. King, the sheriff of Tunica county, through his deputy, W. A. Spratlm, and was purchased by Leo Lesser. The receiver having repossessed himself of the property immediately after the sale, Lesser replev-ied the same from him, and the receiver then gave a forthcoming bond, and had the property again delivered to him. He then filed a petition praying the protection of the court and alleging that he was unaware of the tax claim until the day following the sale; that he had subsequently made a tender of the amount of all taxes and charges, with 25 per cent, in addition, but that such tender was refused. The petition also set fox*tb the replevin proceedings, and averred that there was a fraudulent combination on the part of the purchaser and the deputy sheriff, to put the title in the purchaser by means of tbe tax sale, and also that there were ample funds in the hands of the receiver to pay the taxes. The petition prayed, among other things, for a rule against the sheriff, his deputy, the purchaser, and his agent, to show cause why they should not be attached for contempt. Tbe rule was granted, and after a hearing the court entered a decree ordering and adjudging as follows: “(1) That said sale be, and the same is hereby, declared null and void. (2) That said T. O. King, W. A. Spratlin, Leo Lesser, and E. Doherty, be, and they are all declared to be, in contempt of this court. (3) That said defendants do pay all the costs of this proceeding, and desist from any other or further interference with any of said property in the hands of said receiver, (i) That said Leo Lesser do dismiss the replevin suit brought against said ,T. K. Wooten, agent of the receiver, for said property in the circuit court of Tunica county, Miss. After he shall have so dismissed said suit, and the defendants have paid all the costs of this proceeding, they, and each and all of them, shall stand acquitted of all contempt of this court. It is further ordered by the court that the clerk of this court do pay over to the sheriff of Tunica county, Miss., the taxes — $77.08—due, as shown in the pleadings, which is a lien on said property, out of the money in Ms hands paid to him by said receiver for that purpose; and that defendants, who pray in open court an appeal to the next term of the circuit court of appeals, be and are now allowed said appeal, and thirty days within, which to tender their bill of exceptions.”</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Louisiana.</p>

<p>1. Amejts- N atcraTiTzation — ITusbaxd axis Wive.</p> <p>A citizen of Illinois, who entered the military service of Texas, as a volunteer, in her war of independence, after the adoption on November 7, 1835, by the convention, of the declaration promising citizenship and donations of land to volunteers, and who died in her service in 1836, became a citizen of Texas, and his wife’s citizenship followed his, although she never came to Texas.</p> <p>⅞. Descent and Distribution — Texas Bounty Lands.</p> <p>By an act passed February 13, 1858, the Texas legislature authorized the issuing of a land certificate to such volunteer, by name, and his heirs and assigns, for services rendered in the army. Held, that the question of heirship to the land was governed by the law of descent and distribution in force at the time of the volunteer’s death.-</p> <p>8. Same — Community Property.</p> <p>The property acquired under the above grant was the community property of the volunteer and'his wife, and not the separate estate of the former. Nixon v. Cattle Co., 19 S. W. Rep. 560, 84 Tex. 408.</p> <p>4. Same — Patents—Inception of Title.</p> <p>' The passage of the above act, granting the certificate, was in fulfillment and discharge of the state’s pre-existing obligation to the volunteer; and hence the right to bounty lands did not originate with'the act granting a certificate, but the volunteer’s title had its inception during his lifetime, although the patent was issued after his death.</p> <p>5. Same — Community Property — Rights of Survivor.</p> <p>In the absence of debts and all other proper charges against the community estate, upon the death of one of the spouses a one-half interest in the community property vests absolutely in the survivor, and the remaining half passes to the heirs of the deceased.</p> <p>8. Same — Equitable Interest.</p> <p>The interest which the volunteer’s wife acquired in the community property was of an equitable nature, the legal-title to the whole having passed to the husband. Hill v. Moore, 62 Tex. 610, followed.</p> <p>7. Same — Who are Heirs — Spanish Law.</p> <p>Under the Spanish laws in force in Texas in 1836, a wife could not be heir to her husband, and under no circumstances could succeed to his separate property, except to the marital one fourth when necessary as a relief against poverty.</p> <p>8. Federal Courts — Legal and Equitable Causes.</p> <p>In the federal courts the distinction between legal and equitable proceedings is strictly maintained, and the action of trespass to try title cannot be sustained upon an equitable title, but the party must seek her remedy in a court of equity.</p>

Action by Frank B. McJElwoe against the Bridgeport Land & Improvement Company to recover damages for breach of a contract. The circuit court directed a verdict and gave judgment for defendant. Plaintiff brings error.

Action by William H. Bradley against the St. Louis & San Eran-cisco Railway Company for damages caused by the erection and maintenance of a bridge and embankment. Verdict and judgment for plaintiff. Defendant brings error.

<p>At Law. Action'of trespass on the case, brought in the circuit court of Virginia for Alleghany county by J. O. Tyler against the Western Union Telegraph Company, for injuries resulting from negligent delay in the delivery of a message. The defendant removed the cause to this court. On demurrer to the declaration.</p> <p>Statement by PAUL, District Judge:</p> <p>Tlie plaintiff in this case brought his action in the circuit court of the state of Virginia for the county of Alleghany on the 18th of January, 1892, and it was thereafter, to wit, on "the 7th of June, 1892, removed into this court upon the petition of the defendant company, under the provisions of the act of congress approved March 3, 1875, entitled “An act to determine the jurisdiction of the circuit courts of the United States, and to regulate the removal of causes from the state courts, and for other purposes,” as amended by the act of congress approved March 3, 18_87. The plaintiff alleges that on the 25th day of September, 1801, the defendant company, for and in consideration of the charges then and there paid to said defendant company at Ashe-ville, N. G., by one J. W. Morgan, undertook and faithfully promised that it would carry, transmit, and convey from Asheville, N. C., to the plaintiff, at Olifton Forge, Va., the following message, to wit:</p> <p>“Asheville, N. O. 25.</p> <p>“To .T. O. Tyler, City: Fred is badly hurt. Gome at once.</p> <p>“J. W. Morgan.”</p> <p>—That said message was sent to plaintiff at Olifton Forge, Va. That it was afterwards, to wit, on September 25th, at 5:80 P. M., 1891, received duly by said defendant company at Olifton Forge, Va. That plaintiff was then and there and afterwards a citizen and resident of Olifton Forge, Va., and that he was in that place on the said 25th of September, 1891. That said message showed on its face the importance of its being promptly delivered by said defendant company to the plaintiff, but that the defendant company did not convey, transmit, and deliver the said message to the plaintiff promptly, as it was the duty of the defendant company to have done, but wrongfully held, kept, and retained possession of the same until late in the following day, to wit, September 26, 1891; whereby plaintiff was prevented from seeing his sick son, waiting upon him, and from furnishing him special medical attention, and employing learned surgeons and physicians, by whoso attentions the life of his son might have been saved, and that he was prevented from seeing Ms son alive, whereby, the plaintiff alleges, he has suffered great agony of mind, and has been unfitted for attending to Ms business as he was theretofore able to do, has'been impaired in his health and strength, and has suffered in mind and body, to the damage of plaintiff $4,900. The defendant in this case demurs to the declaration on the ground that an action for damages cannot be maintained where it is based on mental suffering alone.</p>

At Law. Action by Marker against Mitchell for personal injuries received in an elevator operated by defendant. Verdict for plaintiff. Motion for a new trial.

<p>1. Whit of Error — Review—Decisions of Law and Fact.</p> <p>Where all evidence as to a contract is in the shape of letters and telegrams, and by agreement of counsel all questions as to the construction thereof are submitted to the court, which instructs the jury to return a verdict, such instruction must bo considered as based entirely upon the construction of the contract as a question of law, and is subject to review like any ruling upon questions of law; and the proceeding is not the same as a trial by the court under Rev. St. § 700.</p> <p>2. Contract — Construction—Telegrams.</p> <p>Plaintiffs, having the option to require delivery any lime from June 1st to September 30th of a cargo of phosphate rock sold by defendants, on August 21st wired defendants to “please extend time for delivery of rock until November 1st. Telegraph reply.” Held, teat this was only a request to allow plaintiffs the option of taking the cargo in October, and did not give defendants reasonable grounds to believe that plaintiffs intfaided to abandon their rights under the original contract to require delivery before the end of September. 49 Fed. Rep. 443, reversed.</p> <p>8. Same-Definitions.</p> <p>The word “extend” moans “to enlarge, prolong, expand, stretch out,” and is not synonymous with “postpone,” which means “to defer, to put off, to place after or beyond something else.”</p> <p>4. Same — Proposal by Telegram — Acceptance.</p> <p>Where the plaintiff makes a proposal by telegram', with request io reply by telegram, and tiro defendant replies by a telegram which contains no acceptance' of the proposal, but a new proposal,1 and no notice that a letter is to be written, the plaintiff may treat his proposal as rejected, although a letter subsequently arrives accepting plaintiff’s proposal.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Texas.</p> <p>Action of trespass to try title by W. M. Coyle against Joseph Franklin and others. Judgment for defendant Franklin. Plaintiff brings error.</p>

<p>1. Sleeping Cabs — -Ejectment or Passenger from Berth — Damages.</p> <p>Where an unlawful expulsion from a berth of a sleeping car is the proximate cause of a married woman’s miscarriage, the sleeping-car company is liable for such injury, although its servants were ignorant of the woman’s condition when they expelled her.</p> <p>2. Same.</p> <p>Where a sleeping-car company has reserved certain berths for passengers getting on at a certain station, and before the train reaches the sta-lion its conductor erroneously sells one of the berths so reserved, the conductor may, a reasonable time before reaching such station, notify the passenger of his error, and tender another berth equal in accommodation. and the passenger has no cause of action if she refuses to accept this, and voluntarily leaves the car.</p> <p>8. Samis — Parot, Evidence. to Contradict "Berth Check. ”</p> <p>In an action against a sleeping-car company to recover damages for being unlawfully ejected from a berth, the plaintiff may contradict by parol evidence the recital on his ‘‘berth chock” as to the berth bought by him.</p> <p>4. Trial — Instructions—Refusal to Give.</p> <p>To save an error in the refusal to give a proper special charge, such special charge must not be asked in the aggregate with other charges in any one of which there is anything objectionable.</p> <p>5. Same.</p> <p>Although a feature of the case may rightfully call for a proper special charge, still if the charge asked for is too broad, the court may rightfully refuse to give such charge.</p>

Action by Fr. Julius Schreyer against the Kimball Lumber Company to recover moneys advanced on a purchase of lumber. From a judgment dismissing the complaint, plaintiff appeals.

<p>At Law. Trial of an Indictment against Jolm G-iller for selling malt liquors without the payment of a license tax. Verdict of guilty.</p> <p>Statement by PHILIPS, District Judge:</p> <p>This case was submitted to the court, without the intervention of a jury, on the following agreed statement of facts: Defendant, at all times mentioned in the information, was an officer of the Bavarian Benevolent Society, a benevolent association duly incorporated under the laws of the state of Missouri. That among the objects of said society is the cultivation of social intercourse and friendship among Bavarian immigrants, and their descendants, resident in the vicinity of Sf. Joseph, Mo., and to provide for destitute members of tfca society. It is a custom of said society, in the warm season of the year, to assemble at píenles in the fields and groves in the neighborhood of St. Joseph, which picnics, to secure good order and harmony, and to promote tlio enjoyment of said members and their, families, are conducted under the management of the officers of said association. That on such occasions refreshments are served, consisting of meats, bread, cake, and beer, which are purchased and taken to the ground by the officers of said association, a.nd distributed to the members and families as demanded. That on entering the grounds the members can obtain as many tickets as they desire from the proper officer of the said society, paying five cents each, and each ticket entitles the holder to any one article of refreshment provided by the society, or to participate in any one exercise or game of amusement, which may also be provided. On one day in July last, said association had a. picnic, of the description here-inbefore set forth, at Villa Rosa addition, St. Joseph, at winch it furnished refreshments of the kind above stated, including beer, and which was dig-tributed to the members in the maimer above described. At said picnic, defendant was present, and participated in doing whatever was done in behalf of said society. Afterwards, on the 22d day of July, 1891, defendant was accused by some officer of the government with violating the law on tins occasion described, and was notified to call at the internal revenue office, and take out a license, and warned that if he did not he would be arrested, and., supposing that it was required of liim by law, he paid said collector aa internal revenue tax for said society for a year beginning July 1, 1891, and shows to the court herewith the receipt given by the collector of the government to said society for said tax.</p> <p>Cited Seim v. State, 55 Md. 568; Gom. v. Ewig, 145 Mass. 119, 13 N. E. Item, 385; Barden v. Montana Club, (Mont.) 25 Pac. Rep. 1012; Graff v. Evans, 8 Q. B. Biv. 373; Tennessee Club v. Dwyer, 11 Dea, 452; Com. v. Smith, 10® Mass. 144; Gom. v. Pomphret, 137 Mass. 564; Piedmont Club v. Com., (VaJ 12 ⅛ E. Rep. 903; U. S. v. Howell, 20 Fed. Rep. 718.</p> <p>Contra: TJ. S. v. Wittig, 2 Low. 466; People v. Andrews, 115 N. Y. 427, 22 IS, B. Rep. 358; People v. Soule, 74 Mich. 250, 41 N. W. Rep. 908; Martin, v. State, 59 Ala. 34; Chesapeake Club v. State, 63 Md. 446; State v. Essex Club, (N. J. Sup.) 20 Atl. Rep. 769; State v. Easton, etc., Club, (Md.) Id. 783; State v. Neis, (N. G.) 13 S. E. Rep. 225; State v. Bacon Club, 44 Mo. App, 3@; 32 Cent. Law J. 98, 382.</p>

<p>Petitions of B. R. F. Copenliaver and Thomas Nevitt for writ of habeas corpus.</p>

Habeas corpus proceeding-by John C. Eno, detained by the warden of the city prisons of Hew York, under an indictment in a state court, for making false entries in the hooks of a bank.

<p>Appeal by the Importer from a Decision of the United States Board of General Appraisers affirming a decision of the collector of the port of New York.</p>

<p>Customs Duties — Asphalt Mastic — Classification totohb tub Tabiff Act of Makcii 3, 1883.</p> <p>Asphalt mastic, an article produced by crashing an asphaltum mined or quarried in rough chunks, often called “rock,” and by melting and mixing together such crushed asphaltum and a natural mineral bitumen gathered in the island of Trinidad or elsewhere, and by afterwards casting for transportation the mixture so obtained in molds into loaves or cakes, is not free of duty as crude asphaltum, under tlie provision for “asphaltum and bitumen, crude,” contained in the free list (Tariff Ind., New, par. G43) of the tariff act of March 3, 1883, (22 U. S. St. p. 517,) but is dutiable at the rate of 10 per cent, ad valorem under the provision for “all nonduttable crude minerals, but which have been advanced in value or condition by refining or grinding, or by other process of manufacture, not specially enumerated or provided for in this act,” contained in Schedule A (Tariff Ind., New, par. 05) of the same tariff act, (22 U. S. St. p. 494.)</p>

<p>Appeal by the Importer from a Decision of the Board of United States General Appraisers affirming a decision of the collector of the port of New York.</p> <p>Statement by GOXE, District Judge:</p> <p>The decision of the board is as follows: “The merchandise In question is invoiced as Sierra Leone bird pepper. The appraiser returned the same as Cayenne pepper unground, and the collector assessed duty upon it at two and one half cents per pound, under paragraph 326, Act October 1, 1890. The appellant claims in his protest that the merchandise is entitled to free entry as spices 'not edible, in a crude state, and not advanced in condition by refining or grinding or any other process. Cayenne pepper is a preparation from the dried fruit of various species of capsicum. The bird pepper or chilies in question are a species of capsicum, and we find from the testimony of witnesses who appeared before us that it is of a kind largely used in the manufacture of Cayenne pepper. Without giving further consideration to what class of merchandise congress intended to cover by the term ‘Cayenne pepper unground,’ we hold that the claim of the importer that the merchandise in question is a spice which is not edible is not well taken. The protest is accordingly overruled, and the action of the collector stands.” Subsequently the board made a further return as follows: “First. They find that the merchandise subject of this proceeding is a spice, and that it is edible. Second. They find that the said merchandise is in a crude state, and not advanced in condition by refining or grinding or any other process.” The provision of the new tariff act under which the importation was classified by the collector is subdivision b of paragraph 326. It reads as follows: “Cayenne pepper, two and one half cents per pound, unground.” Paragraph 560 of the free list under which the importer insists his merchandise should have been classified, so far as it is applicable to the present controversy, reads as follows: “Spices, vegetables, seeds aromatic, and seeds of morbid growth, weeds, and woods used expressly for dyeing; any of the foregoing, which are not edible and are in a crude state, and not advanced in value or condition, by refining or grinding, or by other process of manufacture, and not specially provided for in this act.” The importer insists that the merchandise in question is a spice unground, not edible, and in a crude state. After the board made its last return, additional evidence was taken in this court.</p>

In Equity. Suit by the Edison Electric Light Company against the Beacon Vacuum Pump & Electrical Company and others for the infringement of a patent. On motion for preliminary injunction.

In Equity. Suit by the Sawyer Spindle Company and others against the W. G. & A. R. Morrison Company for the infringement of a patent. Heard on motion for a preliminary injunction.

<p>In Error to tbe Circuit Court of tbe United States for tbe District of Nebraska.</p> <p>Action by William H. Kellogg and others, composing tbe firm of Charles P. Kellogg & Co., against John Clyne, for goods sold and delivered. An attachment was issued in the action, and levied upon property which Louis C. Clyne claimed to own by virtue of a chattel mortgage to him from John Clyne. Louis 0. Clyne intervened, claiming the property, and judgment was entered in his favor. Plaintiffs bring error.</p> <p>Statement by THAYER, District Judge:</p> <p>This was an intervention by Louis O. Clyne in an attachment suit brought by Charles P. Kellogg & Co. against his brother John Clyne, whereby the in-tervener sought to recover from the firm of Charles P. Kellogg & Co. the proceeds of certain merchandise which that firm had caused to be attached and sold as the property of John Clyne. The intervener based his claim to the proceeds of the goods upon a mortgage in his favor which had been executed by John Clyne on January ⅛ 1891, some throe weeks prior to the commencement of the attachment auk. The íirm of Charles I”. Kellogg & Oo. alleged that the mortgage under which this intervener claimed was contrived by and between John and l.ouis C. Clyne for the purpose of hindering’ and delaying the creditors of the former in the collection of their just debts. There was a trial of this issue before a jury, which resulted in a verdict in favor of the in-tervener, and against the attaching creditors, in the sum of $3,265.60. To establish the charge of fraud, Charles P. Kellogg & Co. offered testimony which established, or tended to establish, the following facts:</p> <p>For about three years prior to Jar wiry 3,1891, John Clyne resided at Friend, Neu., and was engaged in business at that place as a merchant. Prior thereto he had resided for throe or four years at Stafford, Kan., and imd acquired considerable real property in and about Stafford. Before taking up his abode in Kansas, Clyne had resided for several years at Maple Park, 111., and had also been engaged in business at that place as a merchant. While thus engaged in business in Maple Park, Louis O. Clyne was in the service of his brother John as a clerk, from 1879 until April .15, 1884. On the last-mentioned daíe, John and Louis 0. Clyne became partners in the mercantile business at Maple Park under the name oí L. O. Clyne & Co., and immediately Thereafter John removed to Kansas, leaving Louis in full charge of the business at Maple Park. The total capital invested in that firm amounted to $3,000, of which sum Louis contributed $1,500, being the amount that John was then indebted to him for services theretofore rendered. The firm of L. C. Clyne & Oo. continued in existence until January, 1838, when John withdrew, and the lyu.niieAs was thereafter conducted by Louis on his own account. The net profits of the business transacted by L, O. Clyne & Co. for the whole period from April, 1884, to January, 1888, amounted to $12,527. The busmens at Maple Park was transacted in a building hereafter termed the “Maple Park Properly,” the title whereof stood in the name of John Clyne, so far as the record showed, from 1876, when he acquired it, until February 22,1889. For the use of such building and promises the Arm ol' L. O. Clyne & Co., during its existence, and subsequently Louis 0. Ciytio, paid rent io John Clyne until January 7, 1890, at the rate of 8240 per year. On the 22d of February, 1889, a deed waa placed on record, bearing date September 1, 1876, whereby John Clyne conveyed the Maple Park property to ¿osepU-CIy.no, another brother of John, who resided at Stafford, Kan., for an expressed consideration of $3,000. There was considerable tosdmoiry offered v iiicii tended to show, and from which a jury might infer, that the conveyance to Joseph Clyne of the Maple Park property was made with a view of preventing the collection of a note which had been signed by John Clyne, and on which suit was brought against' him by attachment, by a certain bank, on the 7th of February, 1889, in Kane county, 111. On tee 22d of September, 1890, Joseph Clyne conveyed the Maple Park properly to Louis G, Clyne, by a qniiclaun deed, for the expressed eon slrieration of $3,000. Joseph ami Louis Clyne were both called as witnesses. Louis cid not venturo to give any explanation of tee purchase of the Maplo Park properly in September, 3890, but. Joseph claimed teat it was a bona tide sale, for which he had received notes made by Louis to the amount of $3,000.</p> <p>The testimony further tended to show that John Olyno was largely indebted in the fall of 1890; that in November of üm c year lie conveyed all of his real estate situated in and about Stafford,Kan., to Kd. JL Landes, without any consideration moving from said Landes, and that on January 12, 1891, Landes conveyed the same property to Joseph Clyne for an expressed considera lion of $3,600 but without any actual consideration, and that Landes was a mero conduit through whom the title to that property was conyeyed by John to his brother Joseph. On tee 3d of January, 1891, John Oivne executed two mortgages on Ms stock to trade situated at Friend, Neb., — one in favor of a bank located at that place, for tee sum of $803.23, and the other in favor of his brother Louis, (which was charged to be fraudulent,) to secure a note for $3,265 which was dated January 3, 1891, and was payable one day after date, with interest at the rate of 10 por cent, per annum. Within one week thereafter he also executed six other mortgages on the same stock of goods to secure debts due to other parties, but these mortgages were made subject to the lien in favor of the bank and Ms brother Louis. The entire stock was eventually sold in behalf of the attaching creditors and mortgagees for about $4,500. Outside of the stock of goods thus mortgaged, and the real estate conveyed to Landes, it did not appear that John Clyne had any other property. The intervener claimed that the mortgage in his favor for $3,205 was given to secure money wMch he had previously loaned to Ms brother John, and had advanced to pay certain notes which the latter owed. It also appeared in evidence that on February 10, 1890, Louis C. Clyne had made a. statement to a commercial agency showing that his net assets were then $12,843; that on February 11, 1891, he had made another statement, showing his net assets to be $21,500. It further appeared that the average profits of the intervener’s business did not exceed $3,500 per year, and that the increase in Ms means between February, 1890, and February, 1891, was about equal to the sum of his average annual profits, and the value of the property which he was charged to have received in the mean time from his brother John, without consideration. The intervener made no effort to explain how it happened that Ms assets had increased to such extent during the year 1890.</p>

<p>In Equity. Suit by Charles A. Morss against William H. Knapp and others for infringement of a patent.</p>

<p>In Equity. Suit by the Winchester Repeating Arms Company against the American Buckle & Cartridge Company.</p>

Ill Equity. Bill by the Troy Laundry Machinery Company, Limited, and others against Alonzo Sharp and' others to restrain the infringement of a patent. Statement by COXIS, District Judge: This action, for infringement,is based on letters patent No. 401,770, granted April 23, 1889, to Wendell & Wiles for improvements in dampening machines. The patent is now owned by the complainants.

<p>In Equity. Suit by Charles Kaestner against the National Brewing Company, Henry Olsen, Gustave Tilgner, and others for infringement of a patent.</p>

States for the Eastern District of Louisiana. In Admiralty. Libel in personam by H. H. Deemar against Horace E. Bixby and the St. Louis & Hew Orleans Anchor Line for loss of cargo on respondents’ steamer. Decree for libelant. Respondents appeal.

<p>In Equity. Suit by the Colling Manufacturing Company against Ferguson & Hutter’s Trustee and others to annul a deed of trust. The defendant A. H. Burroughs, trustee for said Ferguson & Hutter, demurs to the bill.</p>

<p>1. Mechanics’ Liens — Construction on Laws —• Subcontractors — Railroad Companies.</p> <p>Tiie provision of Laws Ky. 3888, that persons furnishing labor oi materials for the construction oí railroads and other public improvements, “by contract, express or implied, with the owner or owners thereof, or by subcontract thereunder, shall have a lien thereon” for the price of such labor and materials, does not embrace one who furnishes such labor and materials under a contract with a subcontractor.</p> <p>2. Samp. — Wno Entitled to.</p> <p>The language, “all persons who perform labor or furnish labor,” does not Intend only those who perform manual labor. It will embrace the services of a civil engineer, who actually superintended and directed the 'construction of the work.</p> <p>3. Samp, — Tram op Filing— Sttewctency op Claim.</p> <p>The further provision of the act that persons performing such labor must filo a verified statement of the amount claimed, in the clerk’s office, “within 60 days after the last day of the last month in which any labor was performed, or materials or teams furnished,” was sufficiently complied with, in the case of laborers hired by the month, who, while working, filed a statement and claim for the previous month, for which they had not been paid, and after they ceased working filed another claim and statement for such labor performed, after, and not included in, the first statement. The requirement that the statement must set forth tho “amount due, and for which the lien is claimed,” does not necessitate a detailed statement of the claim.</p>

In Equity. Bill by tbe Toledo, Ann Arbor & North. Michigan Bail-way Company against the Pennsylvania Company and others. On motion for a temporary injunction against defendant P. M. Arthur, chief of the Brotherhood of Locomotive Engineers.

In Equity. Bill by tbe Toledo, Ann Arbor & North Michigan Eailway Company against Albert G-. Blair, Jacob S. Morris, the Pennsylvania Company, the Lake Shore & Michigan Southern Bail-way Company, and others, to enjoin respondents from refusing to extend to complainant the same equal facilities as to others for the exchange of interstate trafile.

<p>L Railroad Companies — Salk of Hoad — Rights of Stockholders — Res Ju-dicata — Waiver.</p> <p>A railroad corporation, under authority of the Michigan statutes, (How. St. § 3403,) sold all its property and franchises to another corporation, and the purchaser mortgaged the same to secure an issue of bonds. A minority stockholder in the seller, having dissented from the sale, brought suit against both corporations to set it aside, which resulted in a decree upholding the sale, but providing that such stockholder, on tendering his stock to the purchasing company, should have a right to receive a,n equal number of shares in the purchaser, or to have an execution against the same for the value of ills stock. He elected to take toe latter course, and asked for the declaration of a lien prior to the mortgage, but this, was denied. In a subsequent suit to foreclose the mortgage, he intervened, claiming an equitable lien prior thereto for the value of his stock. Held, that the effect of the former decree was to convert 1dm from- a stockholder in the selling corporation to a judgment creditor of the purchasing corporation, and that he had no lien, as claimed. Jackson, J., was of the opinion that the former proceeding was a waiver by the stockholder of any right he had to assert a lien. Taft, J., was of the opinion that the question of a lien was res judicata.</p> <p>8. Same — “Varidity-—Consideration.</p> <p>Under the provisions of How. St. Mich. § 3403, for the sale of the properly and franchises of one railroad company to anoto or when authorized by a vote of two thirds of the stockholders, such a sale by a corporation organized after the enactment of the law is valid, and concludes a dissenting stockholder, although the terms of toe sale provide for toe payment in stock of the purchasing company. Taft, J., dissenting.</p> <p>8. Same -Bonds — Lis Pendens.</p> <p>A bona fide holder of negotiable corporation bonds is not subject to the general doctrine of lis pendens, and this applies even if they were purchased during toe pendency of too suit in which its issue was finally declared invalid.</p> <p>4. Same — Authority to Pledge Bonds.</p> <p>A railroad company, by proi>er resolution under the provisions of How. St. Mich. § 3352, authorizing it, inter alia, to issue and dispose of bonds, etc., for toe purpose of borrowing money, may pledge its bonds for money borrowed.</p> <p>5. Pledge---¡Sale — Purchase i;y Pledgee.</p> <p>Where a pledgee of bonds makes a sale under and within the terms of toe pledge, and purchases the pledge himself, such purchase is not, per se, void, but only voidable at the instance, and upon toe objection, of too pledgor, or one in privity with him. Third parties and strangers have no right to question too sale or purchase, and in such a case the pledgee may recover the full value of toe bonds, irrespective of the amount for which they were pledged.</p>

<p>1. Witness — Credibility.</p> <p>The testimony oí a witness 77 years oí ago, as to an event in his boyhood oí a nature to be vividly impressed upon his mind, is not discredited by the fact tliat l?is statements as to certain oilier events were confused, and somewhat contradictory, upon a long cross-examination, and Ms memory at fault as to dates.</p> <p>S. Evidence — Inscription on Tombstone —Date on Death.</p> <p>An inscription on a tombstone, if sufficiently authenticated as genuine, and received as such by the family, is admissible, but not always credible, evidence of the date of death.</p> <p>8. Wills — Construction—After-Acquired Property — Ohio Law.</p> <p>Under the Ohio statute of wills of January 25, 1816, (2 Chase, St. 929,) and the act of March 23, 1840, (Swan, St. 992,) incorporated in a modified form into Rey. St. §§ 5914, 5969, a will making- a general devise of all the testator’s real estate speaks from the time of the testator’s death, and passes after-acquired property, unless the contrary intention appears.</p> <p>4. Same.</p> <p>A testator 82 years old — a widower, and childless — devised, “all and singular,” his real estate to sons of his nephew, who had lived with and cared for him, and bequeathed his personal property to their sisters. Held, that his intent was to devise all after-acquired property, and that real property which came to him thereafter by a will, and from an estate of which he was ignorant when his own will was made, passed to'his dev-isees.</p> <p>5. Same — Probate and Record.</p> <p>By the law of Ohio, since the year 1808, a will is not effectual to pass real estate unless it be probated, if domestic, or recorded, if foreign. 47 Fed. Rep. 154, 169, affirmed.</p> <p>6. Same — Destruction op Records — Evidence.</p> <p>The testimony of the clerk of a probate court, the record having been destroyed, that a certain will was admitted to record, should, in the absence of directly contradictory evidence, have greater weight than the omission of any record or statement of such entry in an unofficial local legal journal, published daily, and on which members of the bar generally relied as a. trustworthy chronicle of orders, entries, and judgments.</p> <p>7. Same — Order to Record.</p> <p>Where the record of a will has been ordered, and every act done, except the writing of the record, the instrument should be considered as recorded. 47 Fed. Rep. 154, affirmed.</p> <p>8. Same — Ohio Law-Court oe Common Pleas — Jurisdiction.</p> <p>Under 1 Rev. St. Ohio, p. 14], § 535, providing for the certification of matters in which the probate judge is interested to the court of common pleas, and for the return of all papers to the probate court, upon the final decision of the questions involved in the proceedings, the court of common pleas, after having once heard a case, and certified the papers back to the probate court with an order that the disputed will be admitted to record, has no jurisdiction to set aside the order and recall the papers; the- effect of such order being to make the will effectual to pass title, whether there had been any prior orders admitting it to record or not.</p>

In Equity. Suit brought in the civil district court for the parish of Orleans by William Henderson and Leopold Loeb, provisional syndics of John Calder & Co. and David R. Calder, against John Calder & Co. and David R. Calder, to enjoin them from disposing of a claim against the. United States for sugar bounties earned. Defendants removed the case to the United States circuit court, where judgment was rendered against them, from which judgment they appealed.

In Equity. Suit by tlie United States against the Willamette Valley & Cascade Mountain Wagon-Road Company and others for the forfeiture of lands granted to respondents, and the cancellation of patents issued therefor. Respondents filed answers and pleas, and the bill was dismissed upon argument of the pleas. Complainant appealed, and this decision was reversed, and the cause remanded. 11 Sup. Ct. Rep. 988. Respondents thereupon answered on the merits.

At Law. Action by the United States against Owen P. Fitzsim-mons and the sureties on his official bond as United States marshal. Verdict and judgment for plaintiff, and new trial denied. Defendants appeal.

<p>Appeal from the Circuit Court of the United States for the Southern District of Mississippi.</p> <p>In Equity. Bill by Lucy E. Gastrell against Marx Wineman to remove clond from title. A decree was given for complainant, which, on appeal by respondent, was affirmed. See 53 Fed. Eep. 697, where a full statement of the case will he found. Respondent now petitions for a rehearing.</p>

<p>In Error to the Circuit Court of tbe United States for the Southern District of New York.</p> <p>Action by Eussell Brusie against Peck Brothers & Co. to recover royalties on a patented machine. Verdict and judgment for defendant. Plaintiff brings error.</p>

<p>1. County Ratt/way Aid Bonds — Authority to Tbsttk.</p> <p>Act Gen. Assem. Mo. Jan. 4, 1860, incorporating the Platte City & Des Moines Railroad Company, and providing in section 7, that if a majority of the taxable inhabitants of any strip of country through which the road may pass vote upon themselves a tax in payment of their subscription to stock in the road, at an election ordered by the" county court, the court shall levy a special tax, and cause the same, as fast as collected, to be paid to the. treasurer of the company, does not authorize the county court to order the issue of county bonds in behalf of the taxable inhabitants of any strip of country which is a portion of a township in payment of such subscriptions. Ogdon v. County of Daviess, 102 TJ. S. 634, followed.</p> <p>3. Same.</p> <p>Act Mo. March 23, 1868, authorizing the county courts to make subscription to railroad stock, and issue bonds therefor on behalf of municipal townships, relates to municipal townships as such, and does not authorizo the issue of bonds on behalf of a strip of country which is only a portion of a township. Ogden v. County of Daviess, 102 U. S. 634, followed.</p> <p>8. Same — Ketbospective Laws.</p> <p>The amendment of March 24, 1870, to Act Mo. March 23, 1868, providing that when, by the provision of a railroad charter, the taxable inhabitants of a portion of a municipal township “have voted,” or may hereafter vote, to take stock, etc., the county court shall exercise the same power and perform the same duties in issuing bonds as in the case of a county or township, as to a vote by the inhabitants of a portion of a township had prior to the passage of the amendment, falls within the inhibition of Oonst. Mo. art. 1, § 28, declaring that “no ⅜ ⅜ *• law retrospective in its operation can be passed.” And this act is not relieved of its retrospective character by Oonst. Mo. 1865, art. 4, § 27, and 1875, art. 4, § 53, excepting the state from the prohibition against legalizing by local or special laws the unauthorized or invalid acts of any officer or agent of the state or of any county or municipal authority.</p> <p>4. Sams — Recitals of Records. ■</p> <p>The requirements of a railroad charter that “a majority of the taxable inhabitants” of a strip through which the road may pass may vote to tax themselves in payment of subscriptions to stock in the road is not satisfied by a record of the county court levying such tax that “the taxable inhabitants aforesaid voted,” etc., without other recital or finding that a majority voted in favor.</p> <p>5. Same — Recitals—Estoppel.</p> <p>A county railway aid bond reciting that it was issued “in pursuance of an election by the taxable inhabitants of Oamden Point,” does not estop the county, when the act authorizing the flection in a part of a township lying between designated points, Oamden Point being the voting place therein, required the assent of the majority of the taxable inhabitants.</p>

At Law. Action by James Kenedy against R. S. Benson and G. 0. Hayes to recover damages for false representations as to certain shares of stock. On demurrer to the petition.

<p>In Error to the Circuit Court of the United States for the Eastern District of Michigan.</p> <p>At Law. Action on a contract of insurance in the circuit court for Wayne county, Mich., by Cameron i). Waterman and Joshua W. Waterman against the Greenwich Insurance Company. Defendant removed the cause to the circuit court of the United Otates, where verdict and judgment were given for plaintiffs. Defendant brings error.</p> <p>Statement by TAFT, Circuit Judge:</p> <p>This was a writ of error to a judgment of the circuit court for the eastern district of Michigan in favor of Cameron D. Waterman and Joshua W. Waterman against the Greenwich Insurance Company for $5,475. The action was on an agreement by defendant to insure plaintiffs against loss or damage by fire to an amount not exceeding $5,000 on the steamer Chenango, in consideration of a premium of $50, to be paid by plaintiffs when requested, the risk to attach from the 10th of April, 1890, at noon. On the 11th of April, 1890, the steamer Chenango caught fire, burned, and became a total loss, whereby, as plaintiffs claimed, the defendant became liable for the full amount of the insurance.</p> <p>The defendant pleaded the general issue, and the case was heard before a jury. On the trial the plaintiffs introduced evidence to show that a verbal contract of insurance was made between their agent, Ralph, and Dickinson, the agent of the insurance company, the risk to attach from the 10th of April, the day of making the contract. The evidence of the defendant tended to show that Ralph had applied for insurance to date not from the 10th of April, but from the 20th of that month; that Dickinson had no authority to make a bind-tag contract of insurance for the company, and had forwarded an application, written out by himself, fixing the date for the risk to attach on the 20th of April, and that a policy had issued in accordance with this application. The issues on the trial were — First, as to the agreement between Ralph and Dickinson; and, second, as to Dickinson’s authority in representing the company. On both these issues, the jury found for the plaintiffs.</p> <p>Dickinson was a clerk for Ebfer Ward, and was the general manager of Ms insurance business, and it was not denied by defendant that he had the same authority that Ward had to represent the company. Ward was a local agent of the Greenwich Insurance Company at Detroit, and did a general hull and cargo marine insurance business. He had no written commission. The limits of his authority were fixed by the course of business between him and the general agent of the company, Flint, at Buffalo. He never issued policies of msurance on vessels. He was furnished with certificates of insurance with which to insure cargoes. I-Iis course of business in insuring vessels was to receive a verbal application from the vessel owner or his agent, and then himself fill out a written application, and forward it to the general agent at Buffalo, receiving in return the policy filled out in accordance with the application. Ralph, the plaintiff’s agent, knew that Ward had no authority to issue policies on vessels, or what are called “hull policies.” It was undisputed that no local agents at Detroit of foreign insurance companies had authority to issue hull policies, and that the usual course of business was like that just described in Ward’s case. When a policy was sent to Ward in response to an application, he would deliver it, with a premium note, to the insured. Tha premium note would be sent to the general agent, and returned to Ward for collection, when due. Proofs of loss under marine policies had been served on Ward without objection by the company, and so, too, had notices of abandonment. He was the agent of the company named by its secretary to receive service of process in MicMgan, as required under the Michigan law. He testified that it was the distinct understanding between Mm and the predecessor of Flint M the general agency at Buffalo that he should have no power to make a binding contract of insurance for the company on vessels. It was the custom of vessel owners at the lake ports to delay taking out their insurance until their vessels were ready to sail on their first trips, in order to get the benefit of a reduction M rates, which not infrequently took place about that time. It was contended on behalf of the plaintiffs below that, because of tMs condition in the insurance business, a well-defined usage had become established by wMch the local agents of foreign compaMes were understood to have authority to Mnd their compaMes by preliminary contracts of msurance from the date of the application, when the applicant desired the risk to attach from that day.</p> <p>Tho evidence chiefly relied on to prove the usage was that of Ralph, the agent of the plaintiffs. Another witness, Adams, also testified on the subject, but Ralph’s evidence was much fuller, and less confused. Ralph’s examination upon the subject was as follows: Questions by counsel for plaintiff: “Question. Is there any well-known usage among msurance men and owners of vessels on the lake ports as to when a risk for wMcli a verbal application is made to be covered by a policy, afterwards to be issued, takes effect or attaches? Answer. Yes, sir; there is a very well-defined usage M regard to that. Q. And under that usage, or in pursuance of that usage, when does a risk of that character attach? A. At once, on the application being made to the agent, or we would not have any safety in doing business. Cross-examination: Q. I suppose you mean by that, Mr. Ralph, that it depends upon the agreement made, does it not? For instance, if you ask to have a policy attached on the 20th of April, and made the application on the 1st, it would not attach on the 1st of April. There is no usage of that land, is there? A. No, sir; it would not attach on the 1st. Q. That all there is about the usage is that it is a matter of arrangement at the time the application is made, is it not? A. Yes, sir. If you want both to attach at once, we would consider it attached, if we made the application to the agent. Q. If the agreement is made? A. If I wanted insurance to-day, I would go to the agent and tell Mm and make my application, and I should consider under the usage— Q. Is Hiere anything moro to that image than the fact, where you apply to the agent, that some time afterwards a policy ⅛ returned, which takes effect m accordance with your application? A. Yes, sir. Q. That is all there is to it? A. Yes, sir; about. Q. And, so far as you know, no question has ever arisen in reference to it? It would not naturally arise unless there was a loss? A. Yes, sir. Q. So that the question as to whether the authority of the agents differ has never been involved in any of 1he cases that you refer to, so far as you know, has it? A. No, sir. Q. You have no doubt that there is a difference in the authority of agents, have you; for instance, that some have the power to accept risks themselves, without communicating with the company, while others do not.? You know that from your business experience, do you not? A. TVeD, I consider when a man takes a risk, that binds the company. Q. Don’t you know that there are conditions as between agencies that some agents are authorized expressly to bind. the. company, while others are not? A. I haven't had experience in other office but my own; that is, writing anybody else’s policies. Q. You don’t know anything about any other agencies? A. I don’t know what their agreement is especially. Q. Or what their authority is? A. 1 know they are agents of the comp: ny. <⅝ You know they take applications? A. Yes, sir. O. And upon applications taken by them the company subsequently, as a rule, writes policies in accordance with the application? A. Some are written in the local offices. Q. Do you know of any marine insurance company In Detroit: that writes policies? A. Yes, sir. Q. Who? A. The Detroit Fire & Marine, and Michigan. Q. Do you know of any foreign insurance company that writes policies here in its office In Detroit? A. What .do you mean,--hull policies, or marine policios? Q. Hull policies. A. No; I don’t know of an agent that writes hull policies here. Q. So far as you know, it is the invariable rule for the application to go to the local agent for delivery? A. Yes, sir; for bull policies. Q. It is the invariable rule for the application to go to the general agent of the company through the local agent, —for the general agent of the company, upon that application, to write the policy and send it to the local agent for delivery? A. On hulls themselves, I think that Is perhaps so. Q. So far as you know, that is the invariable role? A. So far as it applies to Detroit.”</p>

<p>Guaranty — -N otice — Consideration.</p> <p>A personal guaranty given by stockholders and directors of a bank to another bank, in consideration of "loans, discounts, or other advances to be made," for the repayment of any Indebtedness thus created, imposes a liability on the guarantors, when acted on by the guarantee, though no notice of acceptance of the guaranty was given; for the contract shows a personal interest of tlie guarantors in the advances, constituting a consideration moving to them.</p>

The statement of the case in the brief of plaintiff was adopted by defendant in error, and sanctioned by the court It is as follows: ' , This is an action at law on a promissory note, brought in the United States circuit court for the western district of Texas on the 20th of March, 1890, by the defendant in error, R. J. Hipwell, against the plaintiff in error, George B. Zimpelman. ' On April 7, 1892, the iilaintiff below filed his “first amended original petition,” alleging:…

At Law. Action by J. 0. Coulson against the Panhandle National Bank and F. M. Davis for damages for the unlawful seizure of a flock of goats. Verdict for plaintiff, who, being dissatisfied with the damages, moved for a new trial. The motion was overruled, and judgment entered. Plaintiff brings error.

<p>In Error to tbe Circuit Court of tbe United States for tbe Eastern District of Texas.</p> <p>Action of trespass to try title brought by Adelaide J. Pluclie, Jeanette Lyon, Albert Emanuel, and others, against D. M. Jones and others. The circuit court instructed the jury to return a yerdict for defendants, and gave judgment accordingly. Plaintiffs bring error.</p>

<p>1. FRAUDULENT CONVEYANCES — GARNISHMENT UNDER MICHIGAN STATUTE-</p> <p>The garnishment process provided for in 3 How. St. Mich. § 8091, is not strictly limited to legal demands and remedies, but includes lights and relief of an equitable character, such as reaching the proceeds of property which may have been acquired by the garnishee fraudulently as against the creditors of the person from whom the same was acquired.</p> <p>&, Same — Province OB' Court and Jury.</p> <p>In a proceeding under this statute to reach the proceeds of property alleged to have been fraudulently conveyed, the court cannot direct a verdict for defendant when the evidence shows that the debtor-made the conveyance with fraudulent intent, and also tends to prove that the garnishee not only had notice of the fraudulent purpose, but also participated therein.</p> <p>8. Same — Evidence—Admissibility.</p> <p>In such an action it is proper to prove that the debtor made false statements to a commercial agency as to the extent and character of Ms assets and liabilities; and it is not necessary that such statements should have Toeen made in the presence of the garnishee, for they tend to show fraud on the debtor’s part, and the garnishee’s connection with the fraud may bo subsequently shown.</p> <p>4, SAME.</p> <p>In such an action, when the bona fides of the ddbt for which the goods were transferred is questioned, and both the debtor and the garnishee •are charged with fraud, it is competent for the debtor’s bookkeeper to testify as to the estimated value of his book accounts, and as to the garnishee’s visits to the debtor’s store, and how the two conversed together.</p> <p>5. Same.</p> <p>In an action under the Michigan statute the court charged, In effect, that a creditor who receives in payment for his debt property which his debtor has acquired fraudulently, is liable if he had notice of such fraud, while a creditor who accepts property honestly acquired by his debtor but transferred with intent to defraud creditors, must not only have notice of the fraudulent intent, but must participate therein.- Held, that this charge was not open to the objection that it told the jury that defendant was chargeable because of mere notice of the debtor’s fraudulent intent in malting the. transfer, although defendant did not participate therein, and his debt was an honest one.</p>

<p>In Equity. Bill by Carter & Co., Limited, against Willliam H. Pry and Cliarles B. Wolfe for an infringement of the Prink patent for duplicate memorandum slips. The patent has been passed upon in the following reported cases: Hurlburt v. Carter, 39 Ped. Rep. 802; Carter v. Houghton, 53 Ped. Eep. 577; Same v. Wollscblaeger, Id. 573. The present case is heard on motion for preliminary injunction.</p>

<p>• In Equity., Bill by the Beece Buttonhole Machine Company against'the Globe Buttonhole Machine Company and others for infringement of letters patent.</p>

<p>Patents for Intentions — Claim—Infringement.</p> <p>Letters patent No. 246,748, issued September 6, 1881, to Alonzo Gerard, for a combination consisting of “an improvement in burglar-proof safes,” which do not claim any improvement in the lock, but admit that “any suitable locking device” may be used, are not infringed by the making and soiling of locks for jail cages similar to thos<j used in the patented safes. 48 Fed. Rep. 380, affirmed.</p>

<p>Appeal from tlie Circuit Court of the United States for tlie South - ern District of New York.</p> <p>In Equity. Suit by Benjamin J. Falk against the (last Lithograph & Engraving Company for infringement of copyright. The circuit court gave complainant a decree. 48 Fed Iiep. 262. Defendant appeals.</p>

In Admiralty. Libel by Charles Smith against the steamboat Whisper. W. E. Barre, master, entered a claim stating that he was the lawful bailee of the owner, John F. Aiken, and executed a release bond with Bernard H. Menge as surety. A decree was rendered for libelant. Aiken, Barre, and Menge appeal, together with J. B. Woods and others, styling themselves “owners” of the steamboat. On motion to dismiss appeal.

In Admiralty. Libel by Charles Smith against the steamboat Whisper, (John F. Aiken, claimant,) ,in a cause of subtraction of wages, and damages, civil and maritime. The district court rendered a decree in favor of libelant. The claimant appeals.

<p>Maritime Liens- — Sure miss — Pmrsokau Credit of Charterers.</p> <p>When the libelant supplied coni at Baltimore for the British ship Curlew, to the charterers, who wore her owners pro hac vice, at their place of residence, and without any reference to the ship as security, charging the charterers Individually on their books, and making no claim against tile vessel until ai'ier the charterers’ failure, held, that the supplies were furnished on the persona] credit of the charterers, not on the credit of the vessel, and a libel against the vessel for the value of such supplies should be dismissed.</p>

<p>In Admiralty. Libels by I. W. Wood and others and John Lewis and Louis Ü. Eekles against the British, steamer Wellington, etc., (Joan O. Duusmuir, claimant,) for salvage. A statement of the facts of the case will be found in The Wellington, 52 Fed. Sep. 605.</p>

<p>In Admiralty. Libel by tbe owners of the canal boat W. H. Matthews against the steam tugs William Orr and Maggie S. Robinson for collision.</p>

<p>1. Collision — Boat at Pier — Vis Major — Evidence.</p> <p>A steamer descending the Mississippi, in trying to make a landing at the foot of Canal street, New Orleans, at 2:30 A. M., collided with and sunk a tug lying at her wharf. It was the custom of prudent navigators attempting to make a landing at that point to pass below it before turning towards the shore, in order to avoid a well-known and dangerous eddy. The steamer did not do so, and set up in defense the fact that she, without fault, had become unmanageable just before the collision by having her rudder clogged by some floating obstruction, tbe only evidence of which was the conflicting and uncertain testimony of the pilot, who made no complaint of any obstruction until after the collision. Held, that a ease of vis major was not proved, and that the steamer was at fault. 48 Fed. Rep. 847, affirmed.</p> <p>2. Same-— Measure or Damages.</p> <p>Although no fixed rule of depreciation from first cost can be adopted asa safe measure of the value of steamboats, and the appellate court considers a better method of valuation to be the expense of replacing the lost vessel, allowing about one third new for old, yet, where the trial judge in his opinion adopta a. rule of 10 per cent, depreciation per annum, the amount of damages based thereon should not be increased on appeal.</p> <p>3. Admiralty — Pleading—Amendment.</p> <p>Where the libel for collision makes no prayer for interest on the amount awarded, such prayer may ho made under admiralty rule 24, by an amended libel filed after all the issues except the amount of damages have been determined.</p>

<p>1. Appeal — Final Dmcjkem.</p> <p>A decree, rendered at the suit of a stockholder, removing the liquidators of a corporation because they had interests adverse thereto, and appointing receivers having the powers and duties of liquidators in addition to th® usual functions of receivers, is not a final decree as to the displaced liquidators from which they can appeal either in their official or individual capacities.</p> <p>2. Sams — Asmgkmtsnts on’ Error — Failure to Kile Appeals.in F/icity.</p> <p>The eleventh rule of the circuit court of appeals for the fifth circuit, requiring an assignment of errors in the court below, which shall form part of the transcript on appeal, is applicable to all cases of appeals in. equity as well as in admiralty, and to writs of error; and a failure to file such assignment is good ground for'dismissing the appeal.</p>

<p>Appeal — Appeal able Judgments — Parties—Severance</p> <p>The sureties upon a supersedeas bond, after affirmance by the appellate court, cannot have the judgment thereafter entered against them in (he trial court reviewed on writ of error without joining the principal and all other defendants in the writ, or obtaining a severance or other equivalent proceedings giving them the right to proceed alone. Hardee v. Wilson, 13 Sup. Ct. Hop. 39, 14tí IT. S. 179, followed.</p>

Action by Charles Warner against the Texas & Pacific Railway Company to recover damages for breach of contract. The court directed a verdict for defendant, and entered judgment thereon. Plaintiff brings error. Heard on motion to dismiss the writ of error.

<p>In Error to the Circuit Court of the United States for the Eastern District of Texasi</p> <p>Action by Charles Warner against the Texas & Pacific Railway Company to recover damages for breach of contract. The court directed a"verdict for defendant, and entered judgment thereon. Plaintiff brings error. A motion to dismiss the writ of error was heretofore denied. 54 Fed. Rep. 920.</p>

In Equity. Bill by Newton Buckner and others against Judah Hart to enjoin the construction of an electric trolley railway in front of complainants’ premises on Coliseum street, Hew Orleans. The circuit court granted a motion for an injunction pendente lite, (52 Fed. Rep. 835,) and defendant appeals.

<p>1. Minks and Mining — Patents—Eight to Follow Dip.</p> <p>The patentee, and even the mere possessor, of a mining claim, under license from the government, has a right to ail minerals lying vertically beneath the surface of his claim,- subject only to the right of the lawful possessor of a neighboring claim having parallel end lines to follow any lode, the apex of which lies within hjs claim, on its dip within the limits of infinite planes vertically projected through such end lines. An unlawful possessor has no such right to follow the dip. Montana Oo. v. Olarli, 42 Bed Rep. 626, disapproved. Duggan v. Davey, (Dak.) 26 N. W. Rep. 887, approved. Reynolds v. Mining Oo., 6 Snp. Gt. Rep. 601, 116 U. S. 687, distinguished.</p> <p>3. Same--End Links— Pakallelism — 'Patent Conclusive.</p> <p>Where the end lines of a surface location of mining lands, as fixed and declared in the government patent, are parallel, the patentee’s right to follow the dip beyond his side lines cannot be defeated by showing that in the original location of the claim the end lines were not parallel. Tho patent while unrevoked is conclusive on this point. Iron Silver Min. Oo. v. Elgin Mining & Smelting- Oo., 6 Sup. Ot. Rep. 1177, 118 U. S. 196, and Mining Go. v. Tarbet, 98 IT. S. 463, distinguished.</p> <p>8. Same.</p> <p>The patentee’s right to follow the dip exists by virtue of Rev. St. § 2322, whether the express grant of such right is contained in the patent or not.</p> <p>4. Same — Abandonment ov Paiit oe Claim.</p> <p>Where a mining claim as located does not have parallel end lines, but the United States surveyor in surveying it draws in one end line so as to make them parallel, the rejection of such survey by the locator will not deprive Ms assignee, upon thereafter accepting the survey, and obtaining a patent in accordance therewith, (abandoning the portion of his claim not included in the survey,) of his right to follow ihe dip beyond his side lines within the vertical planes drawn through the parallel end lines of the survey.</p> <p>6. Same — What Constitutes a Lode.</p> <p>Where mineral deposits are separated into three well-defined parts, traceable for a great distance in their length and <1ep1U, and having distinct foot and hanging wails, each part is a separate vein, within tho meaning of the mining laws giving the right to follow tho dip of a vein beyond Hie side lines of the claim, although Hiero are many ore-bearing cracks and seams running out from each vein, and sometimes extending from one to the other. Eureka Con. Min. Oo. v. Richmond Min. Oo., 4 Sawy. 302, distinguished.</p>

<p>In Equity. Bill in a superior court of California by W. Alston Hayne, Jr., against Charles W. Gould, for partition of property owned by the parties as tenants in common. Defendant removed the cause to this court. Heard on bill, answer, and replication, and cross bill, answer, and replication.</p>

<p>Iii Equity. Bill in a superior court of California by Benjamin S. Hayne against Charles W. Gould for partition of property owned by the parties as tenants in common. Defendant removed the cause to this court. Heard on bill, answer, and replication and cross bill, answer, and replication.</p>

<p>1. Intoxicating Liquors — Manufacture and Sale-State Regulations.</p> <p>There is no inherent right of a citizen to sell intoxicating liquors by retail, and the South Carolina statute of December 24, 1892, entitled “An act to prohibit the manufacture and sale of intoxicating liquors as a beverage within this state, except as herein permitted,” is, in its general scope and purpose, within the police power of the state.</p> <p>2. Same — Constitutional Law.</p> <p>In view of the operation of the act of congress of August 8, 1890, (26 St. at Large, p. 313,) providing that any liquors imported into a state shall immediately become subject to its police laws, even while in the original packages of importation, which act is valid as a regulation of commerce, the South Carolina statute above referred to is not in contravention oí Const. U. S. art. 1, § 10, forbidding tbe states to pass any laws impairing the obligation of contracts, or, without the consent of congress, to levy any imposts or duties on imports or exports, except such as are necessary for executing its inspection laws. In re Rahrer, 11 Sup. Ct. Rep. 805, 140 U. S. 545, followed.</p> <p>8. Same — Discrimination.</p> <p>Nor is the act in contravention of the constitutional provisions (article 4, § 2, and the fourteenth amendment) forbidding any state to discriminate against citizens of other states or citizens of the United States.</p> <p>4. Same — Due Process oe Law.</p> <p>Nor is the act in contravention of the provision of the fifth amendment, forbidding the tailing of property without due process of law, and the tabling of private property for public use.without just compensation. Transportation Co. v. Chicago, 99 U. S. 635, and Mugler v. Kansas, 8 Sup. Ct. Rep. 273, 123 U. S. 659, followed.</p> <p>5. Same — Italian Treaty.</p> <p>Under articles 1 and 2 of the treaty between the United States and Italy, Italian subjects have no greater rights to carry on trade and traffic in liquors within a state than a citizen of the United States has.</p> <p>6. Constitutional Law — Titles oe Laws.</p> <p>Section 20, art. 2, of the constitution of South Carolina requires that every act or resolution shall relate to but one subject, and that shall be expressed in its title. Eeld, that the act passed December 24, 1892, entitled “An act to prohibit the manufacture and sale of intoxicating liquors as a beverage within this state, except as herein provided,” containing provisions for the regulation of the traffic, conforms to this section, as the “regulation” of the traffic is the “prohibition” of it, except in accordance with certain rules.</p> <p>7. Same — Amendment oe Bill.</p> <p>It is a settled rule of parliamentary law in South Carolina that, so long as the enacting words remain in a bill, it can be amended to any extent, even by striking out all after the enacting words, and by inserting other words; and, when a bill passed by the house is thus amended by the senate, such amendment may be concurred in by the house without the three readings required on the original passage.</p>

<p>In Equity. Suit by Edwin E. Whitney against Franklin Fairbanks and' others. Heard on demurrer to the bill.</p>

<p>Vendor and -Vendee — Cancellation oe Sale and Conveyance — Fraudulent Representations.</p> <p>In an action by a vendee against his vendor to cancel a sale and conveyance of 52½ acres of land, it appeared that the tract was represented on a plat of a government survey as containing this quantity; that plaintiff and defendant inspected the land together, but were unable to locate the boundaries, and neither of them knew the quantity or extent of it; that a portion of the tract had been injured by avulsion; that they then estimated that the tract contained 52 acres, and that 6 acres were practically destroyed, and made a corresponding deduction from the price .of the whole tract. It appeared, however, that the land had been so washed away as to leave but 19½ acres of tillable land. Held, that as the parties had assumed that there was a deficit of an unknown quantity of tillable land, and agreed upon an abatement of price on that account, the allega,-tions of fraud were not sustained.</p>

<p>3. Pcsstjo Lands — Decision's of the Lash Office — When Conclusive.</p> <p>Decisions by the secretary oí the interior and Ms subordinates on questions of fact arising in the administration of the land office are conclusive upon the courts when made in the performance of their official duties, no ix-aud being shown; but such decisions, to be valid, must be made according to the usual and regular rules of practice in the department, and must be based on legal evidence, or upon some formal inquiry or trial at which the parties have a fair opportunity of presenting evidence to support the claims or rights which they assert.</p> <p>2. Same — Evidence—Soldiers’ Additional Homestead Entries.</p> <p>The record of the general land office, showing that an additional homestead entry under sections 2304,2306, in the name of a soldier’s widow, was allowed at a district land office, upon the filing of the necessary formal papers and presentation of a paper purporting to be a power of attorney, executed by such widow, authorizing the entry, and that more than 10 years afterwards the commissioner of the general land office canceled said entry for fraud, without giving the party interested a formal hearing, and without .proof of fraud other than an unauthenticated letter from a person assuming to be the one who made the original homestead entry, contradicting the statements in the additional homestead entry papers, is not conclusive, nor sufficient evidence of the illegality of such additional entry.</p> <p>8. Same — Invalid Teanseee.</p> <p>Where such a power of attorney shows on its face that the alleged applicant had already parted with all her beneficial interest, a claimant of the land who admits that he purchased “scrip” therefor, and who does not offer to prove that it was different from the ordinary “Soldier’s Additional Homestead Scrip,” will be presumed to have known either that the power of attorney divested its maker of all beneficial interest before the entry was made, or that, at the time it left the possession and control of its maker, it was a mere blank, and that by subsequently filling the blanks, so as to make it appear valid, a forgery was committed; lienee a deed from the attorney pursuant to the sale was not such an attempted transfer by a bona fide instrument in writing as would entitle the grantee to make a cash entry under 21 St. at Large, p. 238, § 2, though such entry was sanctioned in advance by the commissioner of the general land office.'</p>

<p>In Equity. Suit by the United States against the Workingmen Amalgamated Council of New Orleans, La., and others, to restrain the defendants from interfering with interstate and foreign commerce.</p>

<p>CORPORATIONS — STOCKHOLDERS—UNPAID STOCK— EXECUTION — FEDERAL COURTS —J ÜIÍISDrCTION.</p> <p>The stockholders of a corpora (.ion formed a new corporation, cancelled their stock in tho old corporation, and caused tho property thereof to ho conveyed to the now one; and in payment therefor one of such stockholders took slock in such new corporation, also bonds and cash, the stock taken not having any market value, and the bonds and cash equaling the value of his stock in the old. A creditor of tho new corporation having obtained judgment against it in the United States circuit court in Texas, moved for an execution against such stockholder, in conformity with the provisions of Rev. St. Tex. art. 595, allowing an execution against a stockholder to the amount of his stock unpaid. Held, that the federal court had no power, on its law side, to proceed under the statute to reach alleged unpaid subscriptions for stock obtained under such circumstances.</p>

<p>In Equity. Bill by Walter Wood against Tamlin Braxton and others to enjoin the cutting of timber upon certain lands pending an appeal from an action to determine the title as between the parties to the injunction.</p>

<p>1. Towage — Liability of Tug.</p> <p>Where a voluntary association of tug owners, organized merely for the purpose of preventing minous competition, is accustomed to receive orders for tugs, and a tug is sent in obedience to such an order, the contract of towage is with the tug, and not with the association.</p> <p>⅞ Same — Negligence—Owner’s Risk.</p> <p>The fact that, by the contract, certain towage is to be at the risk of the tow owner, does not excuse the tug from liability for negligence. The Syracuse, 12 Wall. 171, followed.</p> <p>S. Same — Burden oí? Prooí?.</p> <p>Tlie burden of proving that a contract of towage was at the owner’s risk is on the tug.</p> <p>4. Same — Agency.</p> <p>A purchaser of cedar ties sent two scows to be loaded with them at tho seller’s dock, who was to notify a voluntary association of tug owners that towage was wanted. A tug was accordingly sent; by the association, but found tho scow badly loaded, and refused to tow them except at tho owner’s risk. 11eld, that the seller’s dock man had no authority to contract for their towage at the owner’s risk, so as to excuse the tng from liability.</p> <p>5. Same — Abandonment oe Tow — Negligence--Evidence.</p> <p>Tho tug proceeded witli the scows down the Cuyahoga river to Lake Erie, but, finding a heavy swell on the lake, thought it unsafe to venture out, and thereupon returned up the river, tied the scows uo to a dock, and left them without lights or a watchman. Held, that the tug was liable for damage resulting from the scows being carried away from their moorings, whether caused by a defective rope, insecure tying, or other causes, unless the owner had notice of and consented to the arrangement.</p> <p>8. Same — Burden on Proof.</p> <p>The burden of proof was on tho tug to show that tho owner of the scows had been notified of the disposition made of them, and had consent ed to it.</p> <p>7, Same — Local Usage.</p> <p>A local custom of tying tows up to the river bank under such circumstances, end sending notice to tho owner, has no foundation in law, and will not excuse the tug from its liability.</p>

<p>Appeal from tlie District Court of tlie United States for tlie Eastern District of Louisiana.</p> <p>In Admiralty. Libel by the Advance Coal Company against tbe steamboat St. John, L. P. Delabousaye and others, owners* for damages for a collision. Tbe district court entered a decree for libel-ant, and tbe owners of the steamer appealed.</p> <p>Statement by LOCKE, District Judge:</p> <p>On tlie lOtli of January, 1891, a coal barge known as “Advance Coal Co., No. 68,” 175 feet long, 26 or 27 feet wide, and 9 feet deep, laden witli some over 9,000 barrels of coal, was made fast along tbe bank at tbe landing place at Palo Alto plantation, on Bayou Lafourche, La. At about 1 o’clock tbe morning of tbe lltb tbe steamer St. John, a stem-wheel river boat, about 175 or 180 feet long, and including guards, 58 feet wide, was coming up the. bayou, and in passing either struck her or was struck by her, breaking her adrift. The barge floated down tbe bayou about a mile or a mile and a half, when another steamer, tbe Lafourche, pushed her ashore, and the men who had been in charge of her, and followed her down the bank, made her fast. Early the next morning she was found sunk where tied, one side of her slightly above the surface of the water, but mostly submerged. Much of the coal was taken out, but with aditional labor and expense, which, together with the loss of the boat and a portion of the coal, caused a damage to the owners, for winch suit was brought by a libel in admiralty against tlie steamer St John. Upon a hearing the (Steamer was found to be in fault, and judgment for $1,969.28 given against her, from which an appeal has been taken to this court.</p>

<p>1. TOWAGfe — IjIAUITjITY OF Tl'O FOB Is EOHGKNCE — CoNTllAC’T Exemption.</p> <p>A stipulation in a towage contract that the tow shall assume all the responsibility does not relieve the tug from liability for damages caused by want of reasonable care and skill in navigation.</p> <p>2. Same — Negligence of Tug — What Constitutes.</p> <p>A tug, with a canal boat lashed to her port side, while passing out of the Albany canal basin into the Hudson river ran the boat upon a dilapidated pier at the upper side of the opening into the river. At the time there was a freshet, but another boat had been safely towed through by the tug shortly before. There were 10 feet of water between the tug and the lower pier, and passing through tho middle of the cut there would have been 20 feet of clear water on either side. Meld, that the lug was in fault.</p> <p>3. Same -Absence of Helmsman.</p> <p>The canal boat also was in fault in failing to have the helmsman at his post, he having been told how to steer, and instructed that the boat could not be properly handled without Mm, and it appearing that, if at his post, lie might have prevented or lessened the injury.</p> <p>& Same — Negligence of Tow.</p> <p>The fact that a canal boat is old, there being no sufficient proof that she is unseaworthy, does not relieve a tug from liability for negligently running her against a pier.</p>